author:
WATSON, Justice.
      DENNIS, Justice,

text:
    STATE of Louisiana v. Ronald HAWKINS.
    No. 82-K-1487.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Joseph L. Shea, Jr., Hargrove, Guyton, Ramey & Barlow, Shreveport, for relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Carey T. Schimpf, Catherine Estopinal, Asst. Dist. Attys., for respondent.
   WATSON, Justice.

Defendant, Ronald Hawkins, was convicted of resisting arrest in violation of LSA-R.S. 14:108 and sentenced to six months in parish prison. He has appealed his conviction and sentence, assigning two errors by the trial court.

FACTS

Around 3:30 P.M., on May 22, 1981, Shreveport Officers Milton Lanier and Carolyn Gray were on patrol in a marked police car when they observed a car run . a red light. The car was occupied by three black males and had expired license tags. After the car was stopped, Ronald Hawkins, the owner, got out of the right front seat and approached Lanier with his driver’s license. Lanier instructed Hawkins to get back in the car because he did not want to talk to him, and Hawkins complied. Lanier asked the driver, Anthony Henry, for his driver’s license. When Lanier walked back to the rear of the car to obtain the license plate number, Henry speeded away, made a left turn across three lanes of traffic to a parking lot, jumped out of the car and fled on foot. While the officers gave chase to Henry, Hawkins slid over to the driver’s side of his car and drove off in the opposite direction. Lanier had recognized Henry as a burglary suspect for whom he had a warrant. He had intended to arrest both Henry and Hawkins and impound the vehicle, but admitted Hawkins had not done anything. Hawkins, as well as Henry, eluded the officers, although other police cars were asked to find the automobile.

Several days later, while passing the home address of Henry, Lanier observed Hawkins’ automobile. When Lanier stopped to examine the car, Hawkins came out of the house. Lanier placed him under arrest, charging him with being an accessory for aiding Henry in escaping arrest. Hawkins later was charged with the lesser charge of resisting arrest.

Defendant’s assignments of error contend that the state failed to prove beyond a reasonable doubt every element of the crime charged. LSA-R.S. 14:108 provides:

“Resisting an officer is the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
“The phrase ‘obstruction of’ as used herein shall, in addition to its common meaning, signification and connotation mean: “(a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
“(b) Any violence toward' or any resistance or opposition to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
“(c) Refusal by the arrested party to give his name and make his identity known to the arresting officer.
“(d) Congregates with others on a public street and refuses to move on when ordered by the officer.
“Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.”

The issue is whether Hawkins intentionally obstructed the officers’ attempted arrest of Henry.

In State v. Grogan, 373 So.2d 1300 (La., 1979) the defendant was asked to go to the police station for questioning. When defendant ran away, he was chased, caught and arrested for resisting an officer. “Clearly, they were not seeking to arrest defendant at this time; nor were they attempting to seize any property from or serve process upon defendant. Thus, the police officers wrongfully placed defendant under arrest for violation of LSA-R.S. 14:108, resisting an officer.” State v. Grogan, 373 So.2d at 1302.

Flight alone amounts to obstruction of an officer only after the officer gives notice of his intention to make an arrest. State v. Nix, 406 So.2d 1355 (La., 1981). At the time he drove away, Ronald Hawkins had not been notified that he was subject to arrest. The officers did not have probable cause to arrest him because he had committed no crime. Henry, not Hawkins, allegedly ran the red light. Although Hawkins owned the car, owning an automobile with expired license tags is not a crime. Lanier even told Hawkins he did not want to speak to him. Ronald Hawkins did not block or impede the officers. He merely drove away in a different direction after the wanted man, Anthony Henry, fled on foot.

After being told he was not even wanted for questioning, Hawkins left the scene. This is not sufficient to constitute resisting an officer.

For the foregoing reasons, the conviction and sentence are reversed.

REVERSED.

DENNIS, J., concurs with reasons,

DENNIS, Justice,

concurring.

I respectfully concur.

There is no evidence that Hawkins intentionally interfered with or obstructed an attempt by the officers to arrest him or his companion. Although it is a crime to permit a vehicle to be operated with expired tags, there was no evidence that the officers ever attempted to arrest Hawkins for such a violation. La.R.S. 32:52, 32:57, 47:501 and 47:508.

      . Lanier said at one point that he had first started toward the car, but the testimony as a whole indicates both officers immediately chased Henry.


source: Caselaw Access Project

author: LEMMON, justice.

license: Public Domain

text:
    STATE of Louisiana v. Terry PIERCE.
    No. 81-KA-2913.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, William Campbell, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Dwight Doskey, New Orleans, for defendant-appellee.
   LEMMON, justice.

This is an appeal from a conviction of second degree murder.

During a senseless argument over two television sets that defendant had sold to Frank Thomas, defendant shot and killed Thomas. The defense was that defendant had fired in self defense as Thomas was chambering a round in an automatic pistol. There were no witnesses to the actual shooting.

After the shooting, defendant fled. He destroyed and disposed of the shotgun before leaving for Wisconsin, where he was eventually apprehended. He gave a statement to the police, describing a killing in self-defense.

Testifying for the prosecution at the trial, Lynn Armstrong stated that she, Thomas and two other persons were sitting on the porch of an apartment, when defendant walked up and began arguing with Thomas about the television sets. Thomas walked off, followed by defendant. A few minutes •later, Miss Armstrong heard a shot and found Thomas lying on the ground. She did not see either man display a weapon and did not see the shooting.

After hearing the evidence, the jury rejected defendant’s plea of self-defense and found him guilty as charged. He was subsequently sentenced to life imprisonment.

On appeal, defendant contends that the trial court erred (1) in failing to permit him to testify concerning the details of various acts of violence committed by the decedent against others about ten years prior to the homicide and (2) in overruling his objection to a comment by the prosecutor in closing argument to the effect that Miss Armstrong’s pretrial statement was substantially consistent with her trial testimony. Although both rulings were arguably erroneous, neither requires reversal of defendant’s conviction under the circumstances of this case.

After defendant testified that Thomas committed various described hostile acts, including his drawing of a pistol immediately preceding the killing, defendant and other witnesses were allowed to describe in detail various prior occasions on which Thomas displayed a propensity for hostile, threatening and aggressive behavior. When defendant testified that Thomas robbed and shot several people in the “early seventies”, the trial court sustained a prosecution objection based on the remoteness of those incidents. Although defendant was not permitted to testify as to the details of those alleged incidents, the trial court did not admonish the jury to disregard them.

Moreover, even if defendant should have been permitted to testify concerning the details of the victim’s aggressive acts against others, their inclusion would not have significantly added to the already extensive defense portrayal of the victim’s “dangerous character”. The critical issue obviously was defendant’s credibility when he said the victim “drew first”. Had the trial court determined that defendant’s awareness of the earlier incident tended to establish the reasonableness of his apprehension, the remoteness of the incident should only have affected the weight and not the admissibility of the evidence. See State v. Thibeaux, 366 So.2d 1314 (La.1978). Nevertheless, defendant was afforded ample opportunity to prove the victim’s “dangerous character” and his prior threats against defendant himself, as well as the fact that the victim frequently carried a weapon. The ruling complained of, even if erroneous, was not sufficiently prejudicial to require reversal. See La.C.Cr.P. Art. 921; State v. Gibson, 391 So.2d 421 (La.1980).

Defendant’s other contention, regarding the prosecutor’s improper comment during closing argument on part of Miss Armstrong’s statement that was not in evidence, similarly lacks reversible merit.

As stated earlier, Miss Armstrong’s testimony on direct examination described the events immediately preceding the shooting. During cross-examination, defense counsel questioned her about drug use (which she denied) and had her display what a police officer later described as “track marks” on her arms. Defense counsel also pointed out that, in her initial statement to investigating officers, she failed to mention that Thomas was seated with her and others when defendant approached. In that statement, she indicated that she had first seen defendant immediately prior to the shooting, walking behind Thomas and arguing with him. When confronted with the prior statement, she denied saying to officers that she first saw the two men as they walked past her.

During closing argument, the prosecutor made a brief comment to the effect that other portions of her pretrial statement were consistent with her trial testimony (which itself was inconclusive on the crucial issue of whether. Thomas was in the act of pulling a pistol when defendant shot him). Although improper, the comment was not sufficiently prejudicial to the accused to require reversal. La.C.Cr.P. Art. 921.

It was obvious from the evidence that part of Miss Armstrong’s pretrial statement was consistent, and part was not consistent, with her somewhat confusing trial testimony. Thus, the prosecutor’s comments were not of such a nature that they would have been likely to have influenced the jury or to have contributed to the verdict. See State v. Dupre, 408 So.2d 1229 (La.1982).

Accordingly, defendant’s conviction and sentence are affirmed.

      . Under the circumstances, defendant was entitled to introduce evidence of the victim’s “dangerous character” and prior threats against defendant. La.R.S. 15:482. Whether defendant was entitled to introduce evidence of specific hostile acts (of which defendant had knowledge) for the purpose of showing the reasonableness of defendant’s apprehension of being killed or seriously injured is not before us. See State v. Bryan, 398 So.2d 1019 (La.1981). No effort was made to show or to determine whether the incidents in the “early seventies” were known to defendant at the time of the shooting or were otherwise relevant to prove “reasonableness of apprehension”. See La. R.S. 14:20 (justifiable homicide). However, because of defendant’s otherwise full-blown opportunity to go into great detail in attacking the decedent’s character, defendant’s contention does not require reversal.

      . The specific acts of aggression against others would not have been admissible to prove the likelihood that the decedent did “draw first’’, but rather would be admissible only to prove the reasonableness of the accused’s apprehension. See State v. Bryan, 398 So.2d 1019 (La.1981). Character may only be proved by testimony regarding general reputation. La.R.S. 15:479; State v. Boss, 353 So.2d 241 (La.1977); State v. Bernard, 358 So.2d 1268 (La.1978); State v. Fontenot, 50 La.Ann. 537, 23 So. 634 (1898). However, specific hostile acts against others may be offered under some circumstances to prove reasonableness of apprehension. See State v. Bryan, above.

      . Evidence of “dangerous character” is admissible to show reasonableness of defendant’s apprehension (if defendant’s awareness is shown), as well as to show that the victim was the first aggressor. See State v. Lee, 331 So.2d 455 (La.1976). State v. Green, 335 So.2d 430 (La.1976); State v. Bryan, above.

      . See La.R.S. 14:20(1).

      . Defendant, his mother and his girlfriend testified about specific threats by Thomas on defendant’s life. Defendant’s girlfriend also testified about Thomas’ possession of a gun outside defendant’s house several months before the homicide. Three police officers testified that Thomas was armed when they contacted him on prior occasions.

      . The prosecutor is not permitted to offer evidence of a prior consistent statement, except to rebut an inference of recent fabrication or bias (where the event producing the “bias” occurred between the first statement and the trial testimony). La.R.S. 15:497. Furthermore, a prosecutor is never permitted to argue facts not in evidence. See State v. Hamilton, 356 So.2d 1360 (La.1978); La.C.Cr.P. Art. 774.


author: LEMMON, Justice.

text:
    FIRST NATIONAL BANK OF COMMERCE v. Richard J. BOUTALL.
    No. 82-C-1084.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      Robert A. Mathis, Newman & Drolla, New Orleans, for applicant.
    Richard J. Boutall, Metairie, for respondent.
   LEMMON, Justice.

We granted certiorari to review the judgment of the trial court (affirmed by the court of appeal at 411 So.2d 1193) which awarded defendant damages on account of plaintiffs allegedly wrongful seizure of funds in defendant’s bank account. We now reverse, concluding that the funds were not wrongfully seized.

Plaintiff, as defendant’s judgment creditor, obtained a writ of fieri facias and served garnishment interrogatories on the garnishee bank. The interrogatories included the following question:

“3. Have you not in your hands, on deposit or under your control, not exempt by law from seizure, any money, rights, credits, property, or effects of any description belonging to defendant herein? If yea, state what it consists of and how much.”

The garnishee answered the pertinent interrogatory as follows:

“In answer to Interrogatory No. .3, garnishee says it is favored with checking account No. 086-385-6 in the name of Richard J. Boutall Spc with a balance of $40.84 subject to a contractual charge of $10.00, leaving an available balance of $30.84 which it is holding under this garnishment. Garnishee is also favored with checking account No. 086-386-7 in the name of Richard J. Boutall Trust & Escrow with a balance of $5.54 which it is holding under this garnishment; however, garnishee does not know whether or not this account is subject to seizure.”

The judgment creditor then filed a rule to traverse the interrogatories, and a copy of the rule, along with the order assigning the motion for contradictory hearing on June 8, 1979, was served on the garnishee bank.

At the contradictory hearing on the rule to traverse, the attorney for the judgment creditor and the attorney for the garnishee bank appeared, but defendant did not appear. According to counsel’s assertion in brief, the attorneys agreed to release the escrow account, because it was apparent from the name of the account that the funds in that account probably did not belong to defendant and because the judgment debtor was not particularly interested in pursuing the question when such a small amount of money was involved. On the other hand, the “Richard J. Boutall Spc.” account did not give any indication by its name that the funds belonged to someone other than defendant, and the garnishee bank agreed to turn over the funds in that account to the judgment creditor. Presumably, a judgment was to be presented to the trial court in due course.

Later the same day, defendant filed a pleading entitled “Motion to Remove Garnishment, for Preliminary Injunction, and for Damages for Wrongful Seizure”, in which defendant asserted that the funds in the special account belonged to other persons and did not belong to him personally. The hearing on the contradictory motion was set for hearing on June 26.

At the June 26 hearing, defendant testified that $35 of the approximately $40 in the special account belonging to Crescent City Model Railroad Company, of which he was a member, and that he maintained the club’s funds in that account in order to pay certain items on behalf of the corporation for an upcoming convention. Defendant further testified that he had written a check in the amount of $30, payable to cash, after the garnishment interrogatories were served and that the check “bounced” because there were insufficient funds in the account after the seizure to pay the $30 check.

In order to recover damages for wrongful seizure, a party must prove that the seizure was indeed wrongful. In the present case, the judgment creditor obtained a judgment approximately 15 months before the seizure and filed the garnishment interrogatories as a proper procedure for enforcing the judgment. A seizing creditor who serves garnishment interrogatories on a bank generally does not know the exact accounts that the debtor has with the bank or the amounts in the accounts, and there is no indication in this record that the seizing creditor had any information in this regard. While defendant had been questioned at a judgment debtor rule several months before the seizure, defendant in his testimony at the hearing on the rule did not indicate in any manner that he had informed the creditor that the funds in the special account did not belong to him. Significantly, the account by its name did not give any indication to a seizing creditor (even one who expressly seized that account) that the funds in the account did not belong to the debtor.

The garnishment procedure is designed as a streamlined method of obtaining funds of the debtor in the hands of a third party. The seizure becomes effective upon the service of the garnishment interrogatories, so that the garnishee is warned by the seizure that he should hold the seized funds until the court renders an order for the disposition of the funds. Unless it is apparent that the seized funds do not belong to the debtor, it is encumbent on the debtor to bring this fact to the attention of the court. By raising the question of the ownership of the funds, the debtor places that issue before the court for the first time.

Here, the debtor did raise the question of the ownership of the funds, and he presented evidence at the hearing which the trial judge apparently accepted. Therefore, he is entitled to a judgment declaring that those funds are not subject to seizure and to a return of the funds which were turned over to the judgment creditor by the garnishee bank. However, defendant is not automatically entitled to damages just because he proves at a hearing on a contradictory rule that the seized funds in the account did not belong to him, when it was not otherwise apparent to the seizing creditor that the funds in the account were not those of the debtor.

Defendant has not borne the burden of proving that the funds in his bank account were wrongfully seized. Therefore, he is not entitled to damages for wrongful seizure, and the trial court erred in awarding damages for wrongful seizure under the facts of this particular case. The judgment of the trial court awarding damages for wrongful seizure must be set aside.

Accordingly, the judgment of the lower court is reversed, and the judgment debtor’s demand for damages for wrongful seizure is dismissed.

      . The record does not reveal whether the motion and order was served on defendant.

      . This fact does not appear in the record, but was asserted by counsel for the judgment creditor in brief and was not contradicted by defendant.

      . This was the first notice to the seizing creditor that the funds in the special account might not belong to the debtor.

      . Actually, the minute entry for June 8 in the court records shows that the rule scheduled for hearing (which was the rule to traverse filed by the judgment creditor) was continued and reset for June 26. It is relatively insignificant, in view of the decision that we reach, whether or not defendant appeared at the scheduled time of the June 8 hearing. The attorneys for the judgment creditor and for the bank assert that they agreed on the disposition of the two accounts, but no judgment to that effect was signed prior to defendant’s filing of the rule. Furthermore, even if a judgment had been rendered, defendant’s motion could be treated as a timely motion for a new trial. In any event, the entire matter was before the court at the subsequent June 26 hearing.


author: PER CURIAM.

text:
    STATE of Louisiana v. Robert MARSHALL.
    No. 82-KA-1068.
    Supreme Court of Louisiana.
    Dec. 1, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E.L. Edwards, Jr., Abbott J. Reeves, Jr., Asst. Dist. Attys., for plaintiff-appellee.
    Steven R. Thomas, Mansfield, for defendant-appellant.
   PER CURIAM.

Robert Marshall was charged by bill of information with simple burglary, in violation of La.R.S. 14:62. On November 2, 1981, he entered a plea of guilty as charged. Thereafter, the trial court sentenced him to four years’ imprisonment at hard labor. Defendant has now appealed his conviction and sentence to this Court, relying on a single assignment of error.

We have considered defendant’s claim that the sentence imposed by the trial court is excessive and find that it lacks merit. Nevertheless, we note that defendant is on probation for a prior forgery conviction and that the trial court in this case has stipulated that defendant’s present sentence is to run consecutively with any other sentence he may receive. In the event of revocation on that prior offense, however, only the court originally granting the suspension of sentence and probation may determine whether defendant will serve the sentences concurrently or consecutively, La.C.Cr.P. Art. 901(2); State ex rel. Brently v. Dees, 388 So.2d 386 (La.1980).

Accordingly, we affirm the defendant’s conviction, but vacate the sentence imposed and remand this case to the trial court for resentencing in accord with the views expressed herein.

DIXON, C.J., dissents from the reversal of the sentence.


author: LAHAYE, Judge Pro Tem. PER CURIAM:

text:
    Michael Craig BOUDREAUX, Plaintiff, v. Rodney VERRET & Par Industries, Inc. et al., Defendants-Appellants, Defendant-Appellee.
    No. 82-121.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 1982.
    On Rehearing Nov. 17, 1982.
    Rehearing Denied Dec. 29, 1982.

      Roy, Forrest & Lopresto, Alex A. Lopres-to, III, New Iberia, for defendants-appellants.
    Gachassin & Capretz, Nicholas Gachassin, Clement Story, III, Voorhies & Labbe, E. Greg Voorhies, Lafayette, Richard B. Nev-ils, Baton Rouge, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Timothy J. McNamara, St. Paul Bourgeois, IV, of Allen, Gooch and Bourgeois, Lafayette, Camp, Carmouche, Palmer, Barsh & Hunter, David Frohn, Lake Charles, for defendant-appellee.
    Shelton & Legendre, Thomas R. Shelton, Lafayette, for plaintiff.
    Before SWIFT, DOUCET and LAHAYE, JJ.
   LAHAYE, Judge Pro Tem.

Whether or not the defendant-insurer, United States Fidelity & Guaranty Insurance Company, is entitled to a summary judgment dismissing plaintiffs claims against it is the sole issue on appeal. The lower court held that it was, and granted summary judgment accordingly. We reverse.

Plaintiff, Michael Craig Boudreaux, filed suit alleging he received personal injuries due to the fault of several defendants, including Par Industries, Inc. (Par), Rodney Verret (Par’s President) and their insurer, United States Fidelity & Guaranty Company (USF & G).

USF & G issued a Workmen’s Compensation and Employers’ Liability policy covering Par. It also issued a Comprehensive General Liability policy covering Par and Rodney Verret as an additional insured by virtue of his position as an executive officer of Par. USF & G filed a motion for summary judgment contending that the policies excluded coverage in those situations where the plaintiff was entitled to workmen’s compensation benefits. It argued that the plaintiff in this case was an employee of Par, that he was injured while in the course and scope of his employment, and that he was entitled to compensation. Therefore, USF & G contended that the policies’ exclusion provisions precluded coverage of Par or Verret.

USF & G also contends that as a matter of law, plaintiff’s exclusive remedy against his employer and an executive officer of his employer is for workmen’s compensation benefits. In addition it claims that if Par and Verret could not be held liable as a matter of law, then neither could their insurer, USF & G.

Par and Verret oppose the motion for summary judgment arguing that the policies are ambiguous and because there are genuine issues of material fact yet to be resolved. Thus, they argue that summary judgment in favor of USF & G was improperly granted, and they appeal on that basis.

In Lee v. Allstate Insurance Company, 402 So.2d 181 (La.App. 1st Cir.1981), the court said at page 181:

“The law provides that a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.C.P. art. 966. The burden of showing that there exists no genuine issue as to material fact is upon the mover for summary judgment. Any doubt is resolved in favor of a trial on the merits and against the granting of a summary judgment. Emp. Surplus Line Ins. v. City of Baton Rouge, 362 So.2d 561 (La.1978) and Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977).”

USF & G failed to file the insurance policies or copies of these policies in the record of this suit. This court in Richard v. Hebert’s Creamery, Inc., 381 So.2d 945 (La.App. 3rd Cir.1980), when faced on appeal with a similar situation wherein the insurer was granted a summary judgment, stated: “Inasmuch as we have concluded that neither the insurance contract nor a certified true copy of it are in the record, the motion for summary judgment granted in favor of mover, ..., must be reversed.” A similar result under similar circumstances was also reached by our brothers on the First Circuit in the Lee case, supra.

We conclude that USF & G, by failing to file its insurance policies or certified copies of them in the record, has failed to carry its burden of proof, and summary judgment in its favor should not have been rendered.

For these reasons, the judgment of the trial court is reversed and set aside; USF & G’s motion for summary judgment is denied; and the case is remanded to the district court for further proceedings according to law and consistent with the views expresed herein. All costs incurred in connection with USF & G’s motion for summary judgment are taxed against it; all other costs are to await final disposition of this matter.

REVERSED, RENDERED AND REMANDED.

ON REHEARING

We granted a rehearing because we learned on the application for rehearing that the policies of United States Fidelity and Guaranty Company had indeed been filed in the district court but had not been transmitted to the Court of Appeal with the record of this lawsuit. Upon further consideration of the record now supplemented, we hold that we erred in originally holding summary judgment improper.

Plaintiff’s initial petition was drafted as an ordinary negligence action. Omitted from the petition is any request for workmen’s compensation benefits. By amended petition he attempted to allege an intentional tort by adding the following allegations:

“ ‘13(a)’
That MICHAEL CRAIG BOU-DREAUX’S injury resulted from the jointly intentional acts of PAR and VER-RET, as follows:
(1)By ordering the Plaintiff to work at a time and a place when PAR and VERRET knew or should have known that injury was substantially certain to follow;
(2) By requiring the petitioner to perform his job functions on an inadequately secured scaffold approximately 50 feet in the air, under circumstances and conditions where a reasonable man should have known or believed that injury would follow;
(3) That the ‘exclusive remedy rule’ found in LSA-R.S. 23:1032, as amended by Act 147 of 1976, violates the Plaintiff’s rights to equal protection of the laws, substantive due process and adequate access to the courts, and amount to an arbitrary statutory classification having no rational purpose under U.S.C.A. Const.Amend. 14 and LSA-Const. Art. 1, Sec. 2, Sec. 3 and Sec. 15(a);
(4) That VERRET is responsible to the petitioner for his injuries individually insofar as VERRET was an officer and director and shareholder of a corporation which did not conduct its day-to-day business activities as a corporation, and therefore the corporate vale should be pierced and VERRET should be individually responsible unto the Plaintiff for his injuries;
(5) That VERRET was an officer, director, shareholder in a corporation, PAR, which did not maintain its identity as a corporate entity from various other related and affiliated corporate entities insofar as the maintenance of separate corporate accounts, separate corporate funds and separate corporate materials and inventory; and VERRET is individually responsible to the Plaintiff;
(6) That PAR did not conduct its affairs as a corporation, and the officers and shareholders of PAR are individually subject to liability herein without benefit of corporate immunity; and
(7) That PAR and VERRET are responsible unto the Petitioner for breach of legal duties they owed unto the Petitioner as landowner of the premises on which the accident occurred, as custodian of the ‘thing’ (platform jacket and platform) that caused injury to the Petitioner under the ‘dual-capacity’ doctrine.”

On appeal, Par Industries and Verret assign as error the granting of the summary judgment by the trial court in view of the allegations of the amended petition. It should be noted that plaintiff is not party to the appeal. Also, we note that the issue of the insurer’s duty to defend is not before the court. The issue presented for our review is whether, based on the pleadings, affidavits and other evidence filed by the parties pursuant to USF & G’s motion for summary judgment, a genuine issue of material fact was presented; that is, whether USF & G is entitled to judgment based on plaintiff’s exclusive remedy, against his employer and an executive officer of his employer, for workmen’s compensation and/or on the policies’ exclusion of coverage in those situations where the plaintiff was entitled to workmen’s compensation benefits.

Preliminarily, we observe that the defense of tort immunity is not personal to the employer but can be invoked by his insurer when sued under the Direct Action Statute. Carlisle v. State of Louisiana, Through the Department of Transportation and Development, 400 So.2d 284 (La.App. 3rd Cir.1981). Hence, USF & G has standing to assert the motion herein.

The crux of the allegations of amended paragraph 13A of the petition is that the defendants, Par Industries and officer Ver-ret, knew or should have known that an injury would follow when the plaintiff was required to perform his job functions on an inadequately secured scaffold. The allegations of Paragraph 13A are the only ones not clearly within the scope of the provisions of R.S. 23:1032, which provides plaintiff’s exclusive remedy under the workmen’s compensation statute.

Title 23 of the Louisiana Revised Statutes, Section 1032, as amended in 1976, provides immunity from tort liability for employees, executive officers and co-employees of employees injured while engaged in the course and scope of their employment. To escape the exclusive remedy of workmen’s compensation, an employee must show that “(1) the injury occurred while he was not engaged in the course and scope of his employment, (2) the injury resulted from negligence of an employer, executive officer, or co-employee who was not engaged in the course and scope of his employment, or (3) the injury was the result of an ‘intentional act’ of an employer, executive officer, or co-employee.” Nugent v. Executive Officers of Harter Oil Co., 396 So.2d 537 (La.App. 3rd Cir.1981). See also, Tedder v. F.M.C. Corp., 590 F.2d 115 (5th Cir.1979); Courtney v. BASF Wyandotte Corporation, 385 So.2d 391 (La.App. 1st Cir.1980), writ denied, La., 386 So.2d 359.

The plaintiff alleged in his original petition (which was not changed by the amendment) that he was injured in the course and scope of his employment; therefore, the first exception is inapplicable. The amended petition alleges that Par and Verret were outside the normal course and scope of their employment. However, this is a mere conclusion on the part of the plaintiff. In considering an exception of no cause of action, the well-pleaded facts are considered at true, but the court may nevertheless disregard allegations which are not fact but mere conclusions of the pleader. Nugent v. Executive Officers of Harter Oil Co., supra; Lott v. Haley, 363 So.2d 1270 (La.App. 4th Cir.1978); Affirmed in pertinent part, 370 So.2d 521 (La.1979); Shores v. Fidelity & Casualty Company of New York, 413 So.2d 315 (La.App. 3rd Cir.1982). The record reveals no fact which reasonable men could conclude to show Par Industries and Verret acted outside their course and scope of employment. Therefore, unless the petition alleges sufficient facts to constitute an intentional tort, the summary judgment is proper, since plaintiff was clearly within the course and scope of his employment at the time of his injuries.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, show no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. C.C.P. Art. 966; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The existence vel non of an ambiguity in a contract is a question of law. Thus, this case turns on whether there is a genuine issue as to the acts of Par and Verret being intentional.

The amended petition employs the words “intentional act” and “substantially certain to follow.” However, as was noted in Keating v. Shell Chemical Co., 610 F.2d 328 (5th Cir.1980), the use of the word “intent” in the pleadings is not a talisman than can change allegations of gross negligence into colorable claims of true intentional torts for purpose of intentional tort exception to exclusive remedy provision of Louisiana Workmen’s Compensation law. LSA-R.S. 23:1032. The definition of “intent” was recently defined by the Louisiana Supreme Court decision of Bazley v. Tortorich, 397 So.2d 475 (La.1981), to mean “that the defendant either desired to bring about the physical results of his act or believed that they were substantially certain to follow from what he did.” In other words, “intentional act” has been construed to mean the same as “intentional tort” in reference to civil liability. Rennier v. Johnson, 410 So.2d 1149 (La.App. 3rd Cir.1981), writ denied 412 So.2d 1115 (La.1982). Nothing short of an intentional tort will bar exemption from tort liability under R.S. 23:1032. Keating v. Shell Chemical Co., supra.

The allegations of intentional tort in plaintiff’s petition are mere conclusions. Accepting as true all the allegations of fact as to the defects in the scaffolding and the deficiencies in safety, we conclude that they do not constitute facts which show that the defendants desired to injure the plaintiff or any other employee assigned this job, or that an accident or an injury was substantially certain to follow. There are no specific facts pleaded to show how or why defendants knew plaintiff’s injury was a substantial certainty, nor are any facts pleaded as to the knowledge of any defendant of unsafe conditions under which the plaintiff was working. The allegations of fact may be sufficient to show negligence, but they are not sufficient to show an intentional tort as defined in Bazley. Thus, the summary judgment was proper since plaintiff’s exclusive remedy is in workmen’s compensation.

The trial court assigned oral reasons for the summary judgment. The oral reasons were not transcribed and therefore not a part of the record. Thus, the exact basis for the decision is not available. USF & G urges that if the judge felt there were sufficient facts to show an intentional tort, then it is still entitled to judgment because its policies do not cover instances where workmen’s compensation is applicable. USF & G issued two policies covering Par and Verret: (1) A Workmen’s Compensation and Employer’s Liability policy (WC & EL) and (2) A Comprehensive General Liability (CGL) policy. Under the first policy, coverage is afforded the employer for workmen’s compensation or, alternatively, extends coverage only to those situations in which there could be liability in tort. Plaintiff does not seek workmen’s compensation; therefore we need not address this portion of the first policy. The Employer’s Liability or tort provisions of the first policy clearly exclude coverage, by the terms, in those instances where a workmen’s compensation remedy may be available. The second General Comprehensive Liability policy is designed to cover risks to third parties who are not employees and excludes employment relationship risks. This second policy similarly and in equally unambiguous terms excludes coverage where a remedy is available in workmen’s compensation.

Appellants also contend, citing as authority Credeur v. Luke, 368 So.2d 1030 (La.1979), that the policy is ambiguous inasmuch as Par Industries and Verret are named insured in certain provisions of the policies, yet they are excluded from coverage in other provisions. The Workmen’s Compensation and Employer’s Liability policy affords coverage only to the named insured Par Industries, Inc. Under the Comprehensive General Liability policy, Par Industries, Inc., is again the named insured and Rodney Verret is the person insured by virtue of executive officers’ inclusions in the “Persons Insured” definition of the policy. Like claims of ambiguity were urged in Richard v. Hebert’s Creamery, Inc., 415 So.2d 668 (La.App.1982) involving similar clauses, wherein we responded as follows: “That the executive officers are among those defined as persons insured, and as employees of the named insured under the cross-employee exclusion, does not, ipso fac-to, render the policy ambiguous. The latter provision has as its intention the denial of coverage to employees that have a remedy under the Workmen’s Compensation Act. Both the Workmen’s Compensation Act and the contract between the parties limit the right of recovery from a fellow-employee. The trial judge properly concluded that the executive officers were employees for the purpose of the cross-employee exclusion. Heiser v. Gibson, 386 F.Supp. 901 (E.D. of La.1974); Mauterer v. Associated Indemnity Corp., 332 So.2d 570 (La.App. 4th Cir.1976); Manuel v. Liberty Mutual Insurance Company, 256 La. 480, 236 So.2d 807 (1970).

“The present situation is distinguishable from the case relied upon by appellant, Credeur v. Luke, 368 So.2d 1030 (La.1979) where the president of the corporation was individually named in the policy as an insured. As the executive officers herein are not named insureds, there is no ambiguity as to coverage thereof as in Credeur.” Accord: Franklin v. J.A. Jones Construction Co., 391 So.2d 1321 (La.App. 4th Cir.1980); Kelley v. M and M Dodge, Inc., 370 So.2d 1267 (La.App. 3rd Cir.1979). We consider Richard applicable to and therefore controlling in the present case.

As was noted in Heiser v. Gibson, supra, in determining whether an executive officer is an employee, it is proper to look at the Workmen’s Compensation Act. LSA-R.S. 23:1044 states that executive officers are deemed to be employees for purposes of receiving benefits. This being true they ought also to be employees for purposes of interpreting an insurance contract provision, the intent of which is to exclude persons with a remedy under the Workmen’s Compensation Act. Mauterer v. Associated Indemnity Corp., supra.

With regard to appellants' claim that coverage is afforded for intentional acts, we note that under the Comprehensive General Liability policy, coverage is afforded, by definition of “occurrence” only where the accident is “neither expected nor intended” from the standpoint of the insured. Appellants contend that this policy is ambiguous because although it defines “occurrence” to mean in part “an accident”, the policy does not then define “accident.” In insurance interpretation relative to the employment relationship it is proper to look to the Workmen’s Compensation Act. Heiser v. Gibson, supra. The Workmen’s Compensation Act at LSA-R.S. 23:1021(1) defines “accident” as follows:

“(1) ‘Accident’ means an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time symptoms of an injury.”

Thus, the definition of “accident” in the policies operates to eliminate coverage for intentional acts.

Appellants also contend that the CGL policy is ambiguous because it defines “intentional acts” conjunctively rather than disjunctively as in the Bazley definition. We find no ambiguity in the clause in question; the policy merely affords the insured greater protection than the law requires.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment previously rendered herein reversing the judgment of the trial court which granted Appellee’s motion for summary judgment is hereby reversed and set aside, and judgment is hereby rendered affirming the judgment of the trial court. All costs of these proceedings to be paid by Appellant.

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM:

Rodney Verret and Par Industries, Inc., defendants-appellants, have applied for a rehearing from the decision on rehearing rendered on November 17, 1982. They contend that our statement in such opinion, “that the issue of the insurer’s duty to defendant is not before the court,” is incorrect. Even so, we must deny their application for a rehearing, because the allegations of facts contained in the plaintiff’s petitions are insufficient to impose a duty on the insurer to defend this suit on behalf of the applicants.

REHEARING DENIED.


author: SCHOTT, Judge.

text:
    STATE of Louisiana v. Laurence SOLOW.
    No. K-0039.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 21, 1982.
    Writ Denied Nov. 12,1982.

      Milton E. Brener, New Orleans, for relator.
    Charles Ciaccio, New Orleans, for respondent.
    Before SCHOTT, KLEES and LOBRA-NO, JJ.
   SCHOTT, Judge.

Defendant was indicted for committing perjury while testifying at a trial in the Civil District Court for the Parish of Orleans. He filed a motion to quash the indictment on the ground that it was so vague that he was unable to prepare a defense and alternatively applied for a bill of particulars. The state filed a bill of particulars but refused to disclose certain requested information. Following a hearing on the motions the trial court denied the motion to quash and with one exception denied the motion to compel the state to disclose requested information.

Attached to the grand jury indictment were excerpts from defendant’s testimony in Civil District Court on November 9,1981, which contained the allegedly false statement. These included a negative response to a question as to whether he had been able to go to other race tracks around the country as a result of being ejected and barred from the Fairgrounds in New Orleans, affirmative responses that he had been barred effectively from other tracks, he had tried other tracks, was told because of the Fairgrounds situation that he was barred, and had been barred specifically from the Louisiana Downs Racetrack during the previous racing season, denials that he had been in a racetrack parking lot with one Danny Coates during the previous season and had even been in a car with Mr. Coates, and a denial that he had traveled to a racetrack in Nebraska. The trial court permitted the state to amend the indictment to allege that defendant’s perjury included his denial of being in the Louisiana Downs parking lot with Danny Coates. (The original indictment did not specify any particular track). Defendant has applied for supervisory writs assigning six errors in the trial court’s refusal to order the state to furnish the defense with:

I.the basis upon which the State expects to prove that Solow lied in stating that he was not ‘able’ to go to other tracks,
II.the precise location of race tracks in which it expects to prove that So-low was present,
III. the precise time and date of such attendance;
IV. in refusing to order the State to furnish the defense with the names and addresses of witnesses it intends to call at the trial of this case, particularly witnesses by whom the State intends to prove the appearance of defendant Solow at particular race tracks.
V.in refusing to order the State to specify the time and date in which it expects to prove Solow was present in an automobile with Daniel Coates,
VI.in permitting the State to amend the indictment to allege that the question, ‘Were you in the parking lot with Danny Coates this past season?’ to mean the parking lot of Louisiana Downs.”

ASSIGNMENT OF ERROR I

Defendant contends that he is unable to prepare a defense to the case because the indictment is vague. He argues that he might have been telling the truth, depending on what meaning is assigned to the word “able” in the question asked of him. When the question is read in the context of the other questions it is clear that he was being asked whether his ejectment from the Fairgrounds created a bar to his attendance at the race tracks around the country, and he answered that it did. He has been indicted for answering that question falsely. Quite obviously he knows the state will attempt to prove that he has been in attendance at other tracks so he knows what he must defend against. Furthermore, any ambiguity or vagueness in the question would operate to defendant’s advantage since the state must prove that he intended to respond falsely to the question as he understood it. The less specific the question the more difficult it will be for the state to prove the offense. Consequently, this assignment has no merit.

ASSIGNMENTS OF ERROR II AND III

By these assignments defendant seeks the location of race tracks where So-low was supposedly present and the time and date of his attendance there. Defendant’s ejectment from the Fairgrounds occurred in May, 1981, and the perjury allegedly occurred in November; thus, the time frame is a specific near six month period.

Defendant cites no authority for his position that he is entitled to these specifics and he fails to demonstrate that he will be deprived of a fair trial without these details. Moreover, while the state might have evidence of his attendance at other tracks, the context of the questions asked of defendant in the Civil District Court hearing makes it clear that what the state intends to prove is that defendant did go to a specific race track in Nebraska and his attendance there provides the basis for the perjury charge against him.

These assignments are much like No. 11 in State v. Petta, 359 So.2d 143 (La.1978) which the court rejected and have no merit here.

ASSIGNMENT OF ERROR IV

In support of this assignment defendant relies on State v. Walters, 408 So.2d 1337 (La.1982). However, that case seems to weaken rather than support defendant’s position. There the court recognized the general rule that a defendant does not have a right to the names and addresses of state witnesses but found that C.Cr.P. Art. 723 did not prohibit the trial judge within his discretion from ordering the state to disclose such information. The bottom line of the cited case is that the trial court did not abuse his discretion and we fail to see an abuse of discretion in the instant case. We are not persuaded that defendant will be prejudiced in defending himself against the issue that he did go to the Nebraska race track as the state tries to prove he perjured himself in November, 1981, when he denied having been there. This assignment has no merit.

ASSIGNMENTS V AND VI

Defendant took affirmative action in the trial court to require the state to disclose where defendant was allegedly in a parking lot with one Danny Coates. During the hearing on the motion the trial judge ordered the state to amend the indictment to allege that the parking lot was the one at Louisiana Downs. Now having gotten the information he sought, defendant would have the indictment thrown out because he contends that the trial court cannot amend the indictment. We are cited no authority for this proposition and under the circumstances here the amendment was made at the behest of the defendant. We deem his action to be a waiver of any complaint as to the amendment. In this court the state has further amended its bill of particulars to disclose that it intends to prove that defendant was with Coates at the Nebraska Track between April 20 and May 5, 1981, and at Louisiana Downs in October, 1981, thus mooting the balance of these assignments of error.

Accordingly, the application is denied.

DENIED.


author: LOBRANO, Judge.

text:
    Doctor Raymond A. SCHWARZ, Doctor Gary J. Danos, and Doctor Albert Barrocas v. Doctor Rudolph J. BOURGEOIS and Doctor F.J. Soler.
    No. 13052.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Rehearing Denied Dec. 21, 1982.
    Robert C. Lowe, Sessions, Fishman, Ro-senson, Boisfontaine & Natan, New Orleans, for appellant (Dr. Rudolph J. Bourgeois).
    Benjamin E. Loup, New Orleans, for appellant (Dr. Francisco J. Soler).
    William J. Oberhelman, Jr., Oberhelman and Champagne, New Orleans, for appellee (Surgical Clinic of East New Orleans).
    Harold J. Lamy, Barker, Boudreaux, Lamy, Gardner & Foley, New Orleans, for appellees (Drs. Raymond A. Schwarz and Gary J. Danos).
    Herbert J. Garon, Garon, Brener & McNelly, New Orleans, for appellee (Dr. Albert Barrocas).
    Before REDMANN, LOBRANO and WARD, JJ.
   LOBRANO, Judge.

The present appeal arises out of an action for declaratory judgment commenced by Doctors Raymond A. Schwarz, Gary J. Da-nos and Albert Barrocas (appellees) to have the District Court interpret Article VI of .their partnership agreement. Named as defendants were Doctors Rudolph J. Bourgeois and F.J. Soler, (appellants). The partnership entity itself, in which appellants and appellees are partners, was subsequently joined as a party-plaintiff. The district court ruled in favor of appellees’ interpretation and appellants have appealed.

The disputed provision of the partnership agreement is contained in Article VI, and reads as follows:

“No personnel shall be hired or discharged nor shall the pay of any employee be increased or reduced, nor shall any new recurring expenditures in any amount be authorized, nor shall any new non-recurring expenditures in excess of one hundred dollars ($100.00), in any one transaction be authorized nor shall decisions materially affecting the policies or procedures of the partnership be put into effect, without the consent of the Department Head, or Chief of Surgery. This position will be held jointly by the founding partners for as long as they remain active in this practice. If one of the founding partners should become inactive in the practice due to retirement, permanent total disability or death, the remaining founding partner shall be designated the Department Head. The founding partners may delegate any of these powers for such time as they may determine if such action appears to them desirable. In matters involving substantial expenditures or material changes in partnership policy, it shall be the right of any partner to request that a vote of the partners be obtained before implementation of these matters by the Department Head. Such voting shall be conducted along the following guidelines:
Pre-Partnership associates 0 votes
1-5 years service as a partner to partnership 1 vote
5-10 years service as a partner to partnership 2 votes
10-15 years service as a partner to partnership 3 votes
15-20 years service as a partner to partnership 4 votes
20-25 years service as a partner to partnership 5 votes
Additional credit to founding partner 1 vote
A simple majority vote shall determine the issue.
If both founding partners should become inactive in the practice due to retirement, permanent total disability or death, the position of Department Head will then be declared vacant and a successor chosen by the remaining partners.
It shall be the duty and responsibility of the Department Head to keep the other partners informed of the progress of the partnership’s affairs by means of (a) regular meetings of partners held at least one in each calendar month, and (b) periodic financial statements and report.”

A chronological review of the events that led to the dispute is as follows:

Dr. Bourgeois and Dr. Schwarz began practicing medicine together as partners in 1965. This partnership was never reduced to writing. All partnership business was conducted by unanimous consent between Dr. Bourgeois and Dr. Schwarz. The partnership practice grew and both men realized that additional help was needed. On June 9,1975, Dr. Barrocas was hired by the partnership under a written agreement entitled “Pre-partnership Employment Contract”. Dr. Barrocas had no voting rights under this agreement.

On December 1, 1975, Dr. Bourgeois suffered a heart attack. Dr. Schwarz and Dr. Barrocas ran the surgical partnership. For approximately seven months, Dr. Bourgeois was inactive in the medical practice. In 1976, when Dr. Bourgeois returned to the practice, he and Dr. Schwarz became increasingly aware of the necessity of taking new partners. Both men had been in partnership together for over ten years and had built up a considerable investment and practice as well as substantial liabilities.

Drafts of many partnership agreements were prepared by Dr. Schwarz and reviewed by both men. The final partnership agreement of which Paragraph VI is in dispute was entered into between Drs. Bourgeois, Schwarz and Barrocas on August 6, 1976. Dr. Danos entered into the same agreement on May 27,1977, as did Dr. Soler on December 15, 1978.

Over a period of several years conflict and tension arose between Drs. Bourgeois and Schwarz. On April 18, 1980 a meeting of all the partners was conducted. At this meeting, allegedly pursuant to the second paragraph of Article VI, a proposal was made by Dr. Schwarz that he be made sole managing partner of the partnership and that Dr. Bourgeois be removed from this responsibility. All of the partners except for Dr. Bourgeois voted for the proposal. Dr. Bourgeois refused to acquiesce in the vote. Dr. Soler subsequently changed his position, adhering to Dr. Bourgeois’ interpretation of Article VI.

Appellees asserted that the second paragraph of Article VI provided for an orderly and just mechanism for resolving any potential deadlocks arising out of the first paragraph of said Article. When Dr. Bourgeois and Dr. Schwarz voted against each other, that provision of the second paragraph provided the means to break the deadlock. Appellees contend that the second paragraph amends the first paragraph as though the words, “notwithstanding the above” preceded the second paragraph.

Appellants contend that the second paragraph of Article VI must be read in light of and is modified by the provisions of the first paragraph, and that under the terms of the first paragraph no vote can even be taken unless the Department Head/Chief of Surgery (Bourgeois and Schwarz) had first decided to make a “substantial expenditure” or “material change in partnership policy...” In such event, the vote then taken by the other partners could not nullify the action to be taken, but was merely an expression of their opinion.

The case was submitted to the District Court for judgment solely on the pleadings and depositions in the record. Judgment was rendered in favor of plaintiffs-appel-lees agreeing with their position, and the present appeal followed.

The manifest error rule does not apply to the instant case. The trial court was in no better position to assess credibility than this court as the trial judge relied solely upon the filed pleadings and depositions in finding for appellees. Abu Ali v. Guillory, 271 So.2d 882 (La.App. 4th Cir.1973).

Louisiana Civil Code Article 1945 provides that legal agreements have the effect of law upon the parties, and that the courts are bound to give legal effect to all such contracts according to the true intent of all the parties. That intent is to be determined by the words of the contract, where the words are clear and explicit and lead to no absurd consequences. In construing a contract to determine the intention of the parties, the agreement as a whole must be considered in order to give effect to all of the provisions therein contained so as to avoid “neutralizing” or “ignoring” any of them or treating them as “surplusage”. Each clause of an agreement must be interpreted in relation to each other giving to each that meaning which results from the entire act. LSA C.C. Art. 1955; Reuter v. Reuter's Succession, 19 So.2d 209 (La.1944); Hines v. Dixie Electric Membership Corporation, 391 So.2d 1203 (La.App. 1st Cir.1980).

Relying upon the contract as a whole appellant argues that the terms of the contract, taken in their entirety, can be reasonably construed in no light other than that no decision of the partnership could be made without the consent of both Drs. Bourgeois and Schwarz. We must agree with the argument of appellants.

It is apparent from the thrust of the agreement that Drs. Bourgeois and Schwarz jointly would reign supreme, as if they were one entity, for as long as they remained active in this practice. No ofher interpretation can be construed from the record before us. The District Court’s entire judgment is based upon the premise that there was at any given time one sole “managing partner”. As amply pointed out in appellant’s brief, nowhere in the partnership agreement, including the disputed Article VI, can there be found the term “managing partner” or any reference thereto. Additionally, nowhere in the partnership agreement is it contemplated that any one person could act in the capacity of a sole, “managing partner” without the consent of both Dr. Bourgeois and Dr. Schwarz. The phrase “managing partner” was adopted by the court from appellees’ pleadings and depositions. The partnership agreement, and Article VI, only refer to a “Department Head or Chief of Surgery”, an office which is held jointly by both Drs. Bourgeois and Schwarz “for as long as they remain active in this practice”. The language is singular, not plural, which supports appellants’ contention that in essence, there was only one manager of the partnership, namely the Department Head/Chief of Surgery. This position, by definition in the partnership agreement, is the joint authority of Drs. Bourgeois and Schwarz. Nothing else was ever contemplated within the four corners of the agreement. Thus, if follows that if the position was to be held jointly then an implied veto power existed for both.

If Dr. Bourgeois as co-Department Head/Chief of Surgery acted as the manager of the partnership prior to April 18, 1980, it was only with the acquiescence of Dr. Schwarz. If Dr. Schwarz, as a founding partner, wished to delegate his authority for joint control to Dr. Bourgeois, that was clearly within his discretion by the clear and explicit terms of the last sentence of paragraph 1 of Article VI. Dr. Schwarz was free to withdraw his consent at any time. No vote was necessary, none was authorized, and in fact, none was taken. All powers, rights and privileges accorded to each of the men under all the terms of the contract were joint, equal and the same. If Dr. Bourgeois was not elected to manage the partnership by a simple majority vote, it certainly was not the intent that Dr. Schwarz could be.

It is well settled that legal agreements have the force of law between the parties governing its subject matter and courts are duty bound to give legal effect to such agreements.. LSA C.C. Art. 1945; Southern States Equipment Co., Inc. v. Jack Legett Company, Inc., 379 So.2d 881 (La.App. 4th Cir.1980).

The conditions of a contract are to be construed as the parties must be supposed to have understood them at the time of its execution. A court is not concerned with the wisdom or folly of the contract. It cannot annul or amend it simply to avoid some supposed hardship arising therefrom. Its duty is confined strictly to the ascertainment of the limits of the rights and obligations of the contracting parties as they have defined them for themselves. In re Stafford, Derbes and Roy, Inc., 173 La. 361, 137 So. 62 (1931).

The judgment of the trial court is clearly erroneous and not supported by the clear provisions of the partnership agreement. The contract does not contemplate that there ever can be a “sole, managing partner” without the consent of the two founding partners comprising the Department Head/Chief of Surgery (Drs. Bourgeois and Schwarz). A change in the composition of the Department Head/Chief of Surgery can only be effected by an Amendment of the partnership agreement itself, which by the very terms of the partnership agreement can only be effected in writing and signed by all of the senior partners. We hold that the partnership agreement is devoid of any such provision establishing that there is or ever can be a “sole managing partner”. The management of the partnership affairs is vested in Drs. Bourgeois and Schwarz acting jointly as Department Head/Chief of Surgery each with an implied veto. We find no reason to consider any other issues raised by appellant. For the reasons assigned herein, the judgment of the trial court is reversed.

REVERSED.


author: ELLIS, Judge:

text:
    BIG GRAVEL COMPANY, INC. v. Sidney GREMILLION.
    No. 15005.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.

      Robert 0. Butler, Jr., Kilbourne & Dart, St. Francisville, for plaintiff-appellee.
    C. Jerome D’Aquila, New Roads, for defendant-appellant.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

On September 13, 1979, plaintiff Big Gravel Company, Inc. entered into a contract with defendant Sidney Gremillion, reading, in pertinent part, as follows:

“This agreement is per our telephone conversation. We agree to pave the above referenced job with it being 1,850' by 21' and 700' by 13' of soil cement being 10% by volume and 6" in depth.
“We agree to overlay this with 2" of bituminous plant mix asphalt being 1,850' by 20' and 700' by 12'.
“It is agreed that the contract price for the above mentioned work will be $42,-280.00, with 95% of the total contract due upon completion of the work and the remaining 5% due in 30 days.”

After the work was completed, it was discovered that there was over 2,050 feet of 20 foot road and 1,032 feet of 12 foot road. Plaintiff therefore billed defendant for a total of $48,914.30, which was $6,634.30 more than the original contract. When defendant refused payment, plaintiff filed a lien for the full amount against defendant’s property, and brought this suit for enforcement of the lien.

Defendant answered, pled the terms of the contract, and reconvened for damages allegedly suffered because of faulty workmanship. Plaintiff later amended its petition to plead, in the alternative, quantum meruit.

After trial on the merits, judgment was rendered in favor of plaintiff for $37,664.00, and defendant has appealed.

The testimony relative to the confection of the contract is in hopeless dispute. Plaintiffs witnesses testified that the contract was drawn based on dimensions furnished over the telephone by defendant. Defendant testified that Mr. Lawrence Wells of Big Gravel came to his home on more than one occasion, and took the dimensions of the subdivision roads off of the plat thereof. The trial judge made the finding, in his oral reasons for judgment, that changes in the contract were authorized after the contract was entered into. There seems to be no evidence to justify this conclusion.

Our review of the record leads us to the conclusion that the contract was drafted on the basis of measurements furnished by defendant and that work substantially in excess thereof was performed by plaintiff.

The contract called for soil cement to be worked into the road base to a depth of six inches, and for a two-inch overlay of asphalt on top of the base. Core samples taken about four months after completion of the roads showed an average thickness of 1.8 inches of asphalt and 3.78 inches of soil cement. Two expert witnesses testified that, based on the core samples, the base of the roadbed was granular rather than solid, and that the paving would not be satisfactory for that reason. Both stated that they saw flaws in the asphalt paving shortly after it was completed. Two other experts testified that they drove over the road a year after it was completed, and found it to be adequate. The road was, in fact, accepted for maintenance by the Pointe Coupee Parish Police Jury in December, 1980.

The trial judge found that defendant was not entitled to recover for repair or replacement of the road, because it had been accepted by the Police Jury and was no longer defendant’s property. He further found that the road had not been built in accordance with the contract specifications, but that it was usable and that plaintiff was entitled to recover for what it had done. The trial judge figured that the work done was 77% of the work called for by the contract, and gave plaintiff recovery for 77% of $48,914.31, or $37,664.00.

Defendant argues that the court erred in giving quantum meruit recovery under the above circumstances.

Articles 2763 and 2764 of the Civil Code provide:

“Art. 2763. When an architect or other workman has undertaken the building of a house by the job, according to a plot agreed on between him and the owner of the ground, he can not claim an increase of the price agreed on, on the plea of the original plot having been changed and extended, unless he can prove that such changes have been made in compliance with the wishes of the owner.”
“Art. 2764. An exception is made to the above provision, in a case where the alteration or increase is so great, that it can not be supposed to have been made without the knowledge of the owner, and also where the alteration or increase was necessary and has not been foreseen.”

Since the contract was based on erroneous measurements furnished by defendant, and since it was necessary to complete the entire job, rather than just the footage provided for in the contract, we find this case falls under the exception provided by Article 2764, supra. Certainly, defendant should be charged with knowledge of the extent of the job, and should not be permitted to profit from his own failure to inform plaintiff of the true extent thereof. The trial judge properly reformed the contract to cover the full extent of the work performed.

Defendant argues that plaintiff should not have been permitted to recover on a quantum meruit basis, apparently on the theory that the work was so imperfect as to be of no value to defendant.

Article 2769 of the Civil Code provides: “If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”

This article has been interpreted by our courts as set forth in Neel v. O’Quinn, 313 So.2d 286 (La.App. 3rd Cir.1975), writ refused 319 So.2d 440 (La.1975):

“This codal provision has been construed by the courts to mean that when a contractor has ‘substantially performed’ a building contract, even though certain defects are present, he is entitled to recover the contract price, and the owner is relegated to having the price reduced by the amount necessary to perfect or complete the work, i.e. damages attributable to the breach. [Citations omitted].
“In turn, if the building contract has not been substantially performed, the contractor’s recovery is limited in quantum meruit. In the same regard, if the defects are such that cannot be corrected except by removing and replacing the construction, under the jurisprudence the owner may require the contractor to remove the object from his land and restore the premises to their prior condition. In addition, the owner is entitled to damages. [Citations omitted].
“Thus the essential question for determination in a building contract suit is whether the contract has been substantially performed. The burden of showing same is on the contractor trying to recover the contract price or the balance due thereon.
“Substantial performance is said to exist when the house (or other construction) may be used for the purpose intended even though certain defects or omissions in construction exist.”

The trial court found that the work done on the road was not done in accordance with the specifications in the contract. He then awarded 77% of the total amount of the contract, as reformed, which he found to be the proportion of work actually performed.

From this we conclude that he did not believe there was substantial performance of the contract, since his award was based on quantum meruit rather than the contract price.

After a careful review of the record, we are unable to say that the trial judge was manifestly erroneous or clearly wrong in his conclusion in that respect.

Nor can we say that he abused his discretion in finding the value of the work performed by plaintiff to be 77% of the total amount of the contract, as reformed. The road was accepted by the Police Jury for maintenance, and showed no substantial deterioration in June, 1981, when the case was tried over a.year and a half after it was completed, so that substantial value resulted from the work performed by plaintiff.

The judgment appealed from is therefore affirmed, at defendant’s cost.

AFFIRMED.


text:
    FIRST MUNICIPAL LEASING CORPORATION v. STATE of Louisiana. ALLSTATE INSURANCE, et al. v. STATE of Louisiana.
    Nos. 15018, 15019.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.

      R. King Milling, W. Richard House, Jr., New Orleans, for plaintiff-appellee First Municipal Leasing Corp. (FMLC).
    George Kim Johnson, Baton Rouge, Louis M. Jones, La. Dept, of Justice, New Orleans, for defendant-appellant State.
    Stephen B. Lemann, New Orleans, for plaintiffs-appellees Allstate Ins. Co., et al.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

In May, 1975, the State of Louisiana, acting through the Division of Administration, requested bids for a third party lease of certain data processing equipment. The State furnished a lease form containing general provisions satisfactory to the State, and specified, inter alia, that payments under the lease were to be due semi-annually, on October 1st and April 1st, in equal amounts over an eight year period. The lease form contained a provision that, at the termination of the lease, the equipment leased would be returned to the lessor. The equipment, most of which was apparently already in the possession of the State, was to be purchased from Honeywell Information Systems, Inc., by the eventual lessor, for a price of $6,607,094.00.

Among the bidders were Public Systems, Incorporated (PSI), and First Municipal Leasing Corporation (FMLC). The first bid submitted by FMLC was based upon a higher purchase price than that utilized by the other bidders, and included a provision that the equipment would become the property of the State when the last lease payment was made. The purpose of the latter provision, plus certain other minor changes, was to make the return on the investment tax free to the ultimate investors.

PSI proved to be the low bidder, but, because FMLC’s bid was based on the wrong purchase price, it was given an opportunity to resubmit its bid. When the second FMLC bid proved to be low, PSI was given an opportunity to resubmit its bid on the same basis as did FMLC, with the proceeds being tax exempt. The second PSI bid was for eight payments at $565,000.00, $2,000.00 per payment lower than the bid submitted by FMLC, and the contract was awarded to PSI.

Shortly thereafter, FMLC got in touch with PSI and offered its services in funding the contract. An agreement was reached under which PSI assigned the payments under the lease to FMLC, which in turn irrevocably designated The First National Bank of Denver as escrow agent to receive the payment. Smith, Barney and Co., Incorporated, which furnished the purchase money, was designated as the owner, entitled to receive the lease payments from the escrow agent. Smith, Barney, in turn, sold participation in the lease payments to Allstate Insurance Company, and others, who became the ultimate investors.

The lease was finally executed and the funds disbursed on August 6, 1975. Payments were made by the State, in accordance with the schedule provided in the lease, for three years. Thereafter, the difficulties arose which led to the filing of these suits.

After first questioning the manner in which the payments were credited to principal and interest, the State made an attempt to pay off the contract in full by tendering a warrant for $4,527,618.19 to the escrow agent. This sum was stated to be the total of $4,382,433.00, the alleged principal balance due, plus $145,189.19 in interest computed at 7.9033%.

All interested parties, including the escrow agent, FMLC, Smith, Barney, and the investors, objected, claiming that prepayment of the lease could be made only in accordance with the termination schedule contained in the lease.

The escrow agent did not negotiate the warrant, which was tendered as payment in full of the lease on August 28, 1978. On September 15, 1978, the Attorney General of Louisiana wrote a letter to North Shore National Bank, one of the investors, in which he said:

“Regardless of how the dispute between the State and First Municipal Leasing Corporation is ultimately resolved by the Courts, this office is of the opinion that the assignees of First Municipal should be informed that the indebtedness is no longer earning interest after August 31, 1978.
“Any deficiencies will ultimately have to be paid by First Municipal Leasing Corporation or the Division of Administration of the State of Louisiana. In the opinion of my staff, the payment instructions are clear that you can demand your money.”

On November 22, 1978, the escrow agent was instructed by its principals to cash the warrant, with full reservation of rights to assert their claims to a deficiency. These suits followed.

The major issues presented in the trial court were: (1) whether FMLC had a right to bring suit to enforce the agreement; (2) whether an accord and satisfaction resulted when the warrant was negotiated by the escrow agent; (3) whether the warrant for $4,527,618.19 constituted a pre-payment; and (4) whether the termination provisions of the lease agreement were contra bonos mores, and unenforceable.

The trial judge ruled in favor of plaintiffs on all points, and enforced the termination schedule, giving plaintiffs judgment for $1,287,615.51, subject to the right of the State to return the equipment and receive a credit for its subsequent sale or lease. From that judgment, the State has appealed. Plaintiffs have answered the appeal, asking that the amount of the award be increased.

A major issue is the characterization of the lease agreement. The State takes the position that it is in fact a sale, that it can only be enforced as such, and that the State cannot be required to pay more than the purchase price plus accrued interest.

The history of the confection of the agreement shows that it was written as a lease because the State so specified in its request for bids. The original request did not provide for title to revert to the State at the end of the lease. This provision was included at the suggestion of FMLC, because it provided certain tax advantages to the ultimate investors, and because it resulted in lower cost to the State and ultimate ownership of the equipment. The Attorney General of the State of Louisiana issued an opinion to the effect that the lease was a binding obligation of the State, and enforceable according to its terms. This opinion was, of course, relied on by the ultimate investors.

We find that the State is precluded from advancing these arguments because of the opinion rendered by the Attorney General that the lease transaction was a valid obligation of the State and enforceable according to its terms. It is entirely clear from the record that the financing was forthcoming from Smith, Barney and the ultimate investors because of reliance on that opinion. Having made such a representation, we find that the State cannot now repudiate it and attempt to treat the transaction as something else. We hold that the contract is enforceable according to its terms. This finding also disposes of the contention that the termination provisions of the contract are contra bonos mores. In any event, the record reveals that these provisions are standard in contracts of this nature.

The State further contends that there was an accord and satisfaction when the warrant tendered by the State to the escrow agent was negotiated. Accord and satisfaction is an affirmative defense which has been jurisprudentially incorporated into our law from the common law. There are three elements to an accord and satisfaction: (1) an unliquidated or disputed claim, (2) a tender by the debtor, and (3) an acceptance by the creditor. Amite Cty. Coop. v. Heck, 393 So.2d 341 (La.App. 1st Cir.1980). The creditors must understand that, if the payment is accepted, the claim will be deemed to have been paid in full. Antoine v. Elder Realty Company, 255 So.2d 625 (La.App. 3rd Cir.1971). There can be no doubt that the first two elements were satisfied. The State disputed the amount due and tendered a sum in full satisfaction of the debt. However, it is equally clear that the letter of the Attorney General of September 15, 1978, was susceptible of being interpreted as recognizing that the warrant could be negotiated without prejudice to the rights of the ultimate investors. Considering that circumstance, and the fact that the warrant was negotiated with full reservation of rights to proceed for the additional amounts alleged to be due, we find that the third requirement for accord and satisfaction has not been met, and that no accord and satisfaction resulted from the negotiation of the warrant.

The State further argues that FMLC has no real interest in this suit and therefore has no right of action. This argument is based on the factual contention that, after acquiring the right to receive the lease payments from PSI, FMLC in turn assigned these rights to Smith, Barney. This contention has already been disposed of by this court in First Municipal Leasing Corp. v. State, 394 So.2d 282 (La.App. 1st Cir.1979), writ denied 395 So.2d 810 (La.1980), in which the State’s contention was denied. It is contended that additional facts brought out during the trial now mandate a different result. However, the alleged new facts do not alter the essential finding of the court that “it does not appear that plaintiff sold or assigned its right to receive the lease payments or its right to share equally with Public Systems other monies that might be derived from disposition of the computer equipment following termination of the lease by defendant.” 394 So.2d at 284.

All parties argue that the trial court erred in its computation of the amount due plaintiffs under the termination provisions of the contract. As pointed out above, the termination provisions of the contract are the proper measure of the amount due plaintiffs. Basically, the lease provides that it shall terminate automatically unless extended each year for an additional one-year term. During the initial term of the lease, or any renewal thereof, the State has the right to terminate the lease at any time by giving 90 days’ notice of its intention. In that case, the lease provides that the State “may terminate the lease... by paying the Termination Value applicable as of the Termination Date.... ”

In this case, even though the computation of the payments due under the lease was then in question, the State timely notified the escrow agent of its intention to extend the lease for the term from July 1, 1978, through June 30,1979. Under the payment schedule, the next payment was due on October 1, 1978.

The termination notice would necessarily not be effective until November 30, 1978, so that a portion of the amount tendered therewith, $565,000.00, should have been applied to the regular lease payment due on October 1,1978, leaving a balance of $3,962,618.19 to be applied to the termination payment. According to Schedule C, which is attached to the lease, the applicable termination percentage “is indicated to the right of the rental payment next due” as of the termination date. The rental payment next due is that of April 1, 1979, and the termination percentage shown is 76%. Applying that percentage to the original price of the equipment of $6,607,094.00 gives a termination payment of $5,021,-391.44. Subtracting $3,962,618.19 from that amount leaves a balance due by the State of $1,058,773.25. This amount must be paid to the escrow agent in full despite the fact that not all of the ultimate investors are parties to this suit.

The State further objects to the award of legal interest from judicial demand on the award made below, because there is no provision for such in the contract. We find the award of interest to be entirely proper. Article 1921, Code of Civil Procedure; Article 2924, Civil Code.

FMLC and the ultimate investors have requested attorney’s fees as provided for in Section 20 of the lease. Such fees may be due under the lease in the event of a default by the State. However, we find no default in this case. Although the State may not have given the notice required for termination of the lease, and although there may have been a difference of opinion as to the manner in which the lease could be terminated, these procedural shortcomings do not constitute a default within the terms of the lease.

The judgment appealed from is therefore amended so as to reduce the amount thereof to $1,058,773.25 with legal interest from date of judicial demand until paid, and as amended, it is affirmed. Costs in the amounts of $1,721.63 in Suit No. 15,018 and $778.63 in Suit No. 15,019 are assessed against the State.

AMENDED AND AFFIRMED.


author: SAVOIE, Judge.

text:
    Edgar W. JOHNSON v. AETNA CASUALTY & SURETY CO., et al. Jessie Mae JOHNSON v. AETNA CASUALTY & SURETY CO., et al.
    Nos. 15024, 15025.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Rehearing Denied Dec. 16, 1982.

      L.B. Ponder, Amite, for plaintiffs-appellants.
    Iddo Pittman, Jr., Hammond, for defendants Aetna Cas. & Sur. Co., Crown Zeller-bach Corp. and Triangle Timber, Inc.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

These consolidated workmen’s compensation claims are before this court for a second time. Originally, the trial court concluded plaintiffs’ injuries did not arise out of and occur within the course of plaintiffs’ employment and denied relief. We reached the opposite conclusion on appeal and remanded for a determination of quantum, 387 So.2d 1340. On remand, the trial court computed the compensation rate of $39 per week for both plaintiffs. At that time, it reconsidered the issue of Mr. Johnson’s disability (under R.S. 23:1331), and held Mr. Johnson to be permanently and totally disabled. Further, the trial court denied penalties and attorney fees under R.S. 23:1201.-2. It also denied defendants’ claim of credit for a $1,200 medical payment.

Presently, plaintiffs contend the trial court erred in determining the compensation rate at $39 per week and in refusing to award statutory penalties and attorney fees. Furthermore, defendants claim the court erred in failing to give credit for the $1,200 payment, and in failing to determine Mr. Johnson was no longer permanently and totally disabled and to compute his award accordingly.

We have modified Mr. Johnson’s award based on our determination that he is no longer permanently and totally disabled. In all other respects, the trial court’s judgment is affirmed.

Plaintiffs were injured in a head-on collision when returning from work on July 10, 1978. Mr. Johnson’s injuries consisted of a broken hip, laceration of an ear and loss of several teeth. Thus, this court, on first appeal, concluded that Mr. Johnson was permanently and totally disabled. We further determined that Mrs. Johnson was entitled to workmen’s compensation benefits for a 16-week period. The trial court was charged with computing the applicable compensation rate.

On this second appeal, plaintiffs claim the trial court erred in computing the compensation rate of $39 per week. This rate was determined in accordance with the provisions of R.S. 23:1202. A letter from the Louisiana Department of Labor lists the average weekly wage figures from 1976 to 1979, as follows: •

September 1,1976 $179.13
September 1,1977 $194.75
September 1,1978 $210.88
September 1,1979 $220.08

Plaintiffs argue the trial court erred in computing the rate on the $194.75 wage figure rather than the $210.88 figure.

Paragraph 2 of R.S. 23:1202 (see footnote 1) provides that the weekly wage be determined on or before August 1 each year. This wage is applicable for the full period during which compensation is payable when the date of injury falls within the twelve month period commencing September 1 following the determination. This accident occurred on July 10, 1978. Therefore, $194.75 is the applicable average weekly wage.

The court established E.W. Johnson’s wages to be the same as his co-worker, Mrs. Johnson, since there existed no evidence to show his wages nor was there any specific information on which to base his net earnings. We find no error in this determination. Rashall v. Fallin & Savage Timber Company, 127 So.2d 238 (La.App. 3rd Cir.1961); Malone and Johnson, Workers’ Compensation § 327 in 14 Louisiana Civil Law Treatise 103 (1980).

Secondly, plaintiffs contend the trial court erred in refusing to award penalties and attorney’s fees. R.S. 23:1201.2 provides for the recovery of penalties and attorney’s fees when the employer’s failure to pay compensation under this statute is arbitrary, capricious and without probable cause. The trial court concluded a legitimate dispute existed between the parties as to the amount of wages and the rate of compensation. We find no manifest error by the court on this issue.

Further, this court finds no error in the trial court’s denial of credit to defendants for the $1,200 medical payment. R.S. 23:1203 provides, in pertinent part:

“In every case coming under this Chapter, the employer shall furnish all necessary medical, surgical and hospital services, and medicines, or any non-medical treatment recognized by the laws of this state as legal.”

Therefore, defendants are not entitled to a credit for moneys advanced as a personal loan to plaintiffs by Mrs. Curtis. This is so, even though the moneys were used to pay part of Mrs. Johnson’s hospital expenses.

Defendants’ assignments of error as to Mr. Johnson’s disability and compensation therefor involve several different provisions of R.S. 23:1221. The first two paragraphs of this statute set forth the compensation schedule for payment to totally disabled workers. Total disability, whether permanent or temporary, means the inability to engage in any gainful occupation, whether or not the same or one similar to that in which the employee was customarily engaged when injured. Schouest v. J. Ray McDermott & Co., Inc., 411 So.2d 1042 (La. 1982); Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir.1977). On remand, the evidence established Mr. Johnson’s employment at that time with Reed & Sims, Inc. Therefore, the trial court should have concluded that Mr. Johnson was no longer permanently and totally disabled.

Our holding that Mr. Johnson was no longer permanently and totally disabled requires a further determination of his present status of disability. Defendants contend that the trial court erred in failing to find Mr. Johnson only partially disabled. R.S. 23:1221(3) provides the compensation rate “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.” This means that if an injured employee is unable to perform his usual or customary occupation but can engage in some other gainful employment for which he is fitted by education, training, or experience, he is only partially disabled. Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir.1977); Dupont v. Ebasco Services, Inc., 411 So.2d 605 (La.App. 4th Cir.1982). On remand, it was established that Mr. Johnson was hauling wood for Reed & Sims, Inc. However, the evidence revealed that Mr. Johnson was no longer able to handle a saw or walk on uneven ground. Consequently, he could no longer perform many of the activities required in his work. Instead of felling the trees, Mr. Johnson was measuring the logs and driving the truck. Thus, Mr. Johnson remained partially disabled.

For injuries producing partial disability of the employee, the compensation rate is 66%% of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages ... R.S. 23:1221(3). This provision is pertinent to defendants’ claim that the trial court erred in failing to ascertain that Mr. Johnson’s earnings at the time of the remand were equal to or in excess of his earnings at the time of the accident. The accounting records of Mr. Johnson’s respective employers show that Mr. Johnson’s wages, after the injury, were in excess of the wages earned at the time of injury. Thus, at that time, Mr. Johnson was entitled to no compensation for partial disability under the terms of R.S. 23:1221(3).

For these reasons, we amend and hold plaintiff Mr. Johnson to be partially disabled. He is entitled to receive compensation at the rate of $39 per week from the date of accident (July 10,1978) until date of gainful employment (July 3, 1980). In all other respects, the judgment of the trial court is affirmed. Costs of the appeal are to be borne by defendants.

AMENDED AND AFFIRMED.

      . The trial court’s “Findings of Court” explains the manner in which it arrived at this compensation rate as follows: “At the original trial, plaintiff Edgar W. Johnson testified that from the total amount he received from Triangle Timber for a load of pulpwood, he paid his crew $4.00 per cord. (Tr. p. 96) Jessie Mae Johnson testified that she and the two boys split the $4.00. (Tr. p. 118) Her share would thus be $1.33 per cord. The figure of $1.33 per cord, times the average of 35.71 cords per week, would amount to average earnings of $47.49 per week for Jessie Mae Johnson. Sixty-six and % percent of this figure would amount to a compensation rate of $31.63 per week. However, the minimum compensation required by R.S. 23:1202 is 20% of the $194.75 established by the Louisiana Department of Labor as the average weekly wage. This makes the minimum $38.95, rounded to $39.00 as the nearest dollar, ...”

      . R.S. 23:1202 reads, as follows:
      “(1) ... For injuries occurring on or after September 1, 1977, the maximum weekly compensation to be paid under this Chapter shall be sixty-six and two-thirds per centum of the average weekly wage paid in all employment subject to the Louisiana Employment Security Law and the minimum compensation shall be not less than twenty per centum of such wage, said maximum and minimum to be computed to the nearest multiple of one dollar. In any case where the employee was receiving wages at a rate less than the applicable minimum compensation, the compensation shall be the employee’s wages”. (Emphasis added)
      “(2) For the purposes of this Chapter, the average weekly wage in all employment subject to the Louisiana Employment Security Law shall be determined by the administrator of the division of employment security on or before August 1 each year as of the quarter ending on the immediately preceding March 31 of each year. The average weekly wage so determined shall be applicable for the full period during which compensation is payable when the date of occurrence of injury falls within the twelve month period commencing September 1 following the determination.

      . The record fails to establish the exact date Mr. Johnson began working for Reed & Sims, Inc. However, Reed & Sims’ accounting records show the company first issued Mr. Johnson a check on July 3, 1980.