author: BARRY, Judge.

text:
    Eugene August JACOB, Jr. v. Toby Shane JACOB and Deborah Fincher Jacob.
    No. 13047.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 7, 1982.
    Manuel A. Fernandez, Chalmette, for defendants-appellees.
    Richard A. Tonry, J. D., Chalmette, Floyd J. Reed, J. D., New Orleans, for plaintiff-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

Plaintiff appeals a lower court decision which refused to order blood tests and dismissed his petition to disavow a child born during his marriage.

Plaintiff obtained an uncontested legal separation on October 24, 1978 and a divorce on August 16,1980. The child was born March 22, 1979 before dissolution of the marriage, therefore presumption of paternity is clearly applicable. La.C.C.Art. 184, 185.

Plaintiffs suit to disavow was filed against his ex-wife and the child and asked that all parties submit to a blood test. The wife never answered and the child, through a curator ad hoc, filed a general denial. At the hearing to show cause whether blood tests should be ordered, the transcript shows the curator “interposed objection and exception to proceeding with evidence on blood test(s)”, but no written exception is in the record. The Trial Judge heard argument, apparently on an oral exception of no cause of action, then stated he agreed with the curator’s position and the “exception will be maintained”. The court then allowed plaintiff to testify, subject to the exception, after which it rendered a “Judgment on Exception of No Right of Action” wherein the “exception of no cause of action” was maintained.

In written reasons the Trial Judge said: “In this case, the child was certainly born within the presumptive period. Theefore (sic), presumption of paternity does exist, and the court finds that the petitioner does not have the right to bring this action requesting that the child and the mother submit to blood tests.” The court stated it also took into consideration LSA-C.C. Art. 189 and concluded “the petitioner knew or should have known about the birth of the child”. We affirm, but for the following reasons.

The district court’s reasoning (adopted in the curator’s brief) that presumption of paternity precludes a request for a blood test is clearly wrong. The purpose of R.S. 9:396 is to provide a way to rebut the strong presumption of paternity. The statute mandates a blood test and a request is not discretionary if made timely.

In order to rebut the presumption of paternity a petition to disavow must be filed within one hundred eighty days subject to the provisions of La.C.C. Art. 189. Plaintiff’s suit was filed July 17, 1981, approximately two years and four months after the child’s birth.

Plaintiff alleges in his petition he learned of the child’s birth on March 14, 1981 and testified he did not have any contact with his wife after May 24, 1978. The wife/mother testified she saw her husband twice when she was 7 months pregnant (wearing maternity clothes) and also saw his aunt and cousins during her pregnancy. In his reasons the Trial Judge noted the parties lived in small communities several miles apart, the wife made no effort to conceal her pregnancy, and concluded plaintiff knew or should have known about the child’s birth. Plaintiff does not contend “remoteness” nor that his wife attempted to conceal her pregnancy.

Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveu, the court, upon its own initiative or upon request made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require.

Plaintiff’s primary contention is that LSA-R.S. 9:396 mandates blood tests be ordered in limine when the motion is by a party to the proceeding and cites McGowan v. Poche, 393 So.2d 278 (La.App. 1st Cir. 1980) to show the curator’s exception should have been dismissed. However, McGowan pertains to use of summary judgment and is inapplicable here.

Plaintiff’s argument seeks to make the blood test act exclusive So that it super-cedes codal provisions, statutes and jurisprudence pertaining to paternity. We disagree. Results of a blood test provide only one of several possible ways to present “any facts” in order to negate paternity. La. C.C. Art. 187. (See Official Revision Comments under Art. 187.) R.S. 9:396 does not provide a time limitation for blood tests to be requested, but this does not mean codal procedures are to be ignored or negated. Absent a clear expression to the contrary, we feel the legislature did not intend to circumvent the clear prescriptive provision of Art. 189. As a practical matter, a parent seeking to disavow should not be allowed to use R.S. 9:396 at any time regardless of the circumstances. For an extreme example, see Redmon v. Redmon, 391 So.2d 916 (La.App. 2nd Cir. 1980).

We conclude the one hundred eighty day limit to bring suit to disavow under Art. 189 is a period of peremption (forfeiture). In Pounds v. Schori, 377 So.2d 1195 (La.1979) the Supreme Court held former C.C. Art. 191 peremptive and said at p. 1200:

“The concept that the legal status of a child presumed to be legitimate has, at least by implication, been one of the underlying reasons for our traditional and historical position of zealously guarding and enforcing the presumption created by Article 184, above. Our jurisprudence reflects unwavering dedication to the rule of strict construction of the articles governing disavowal actions. The fundamental end achieved thereby is, of course, preservation of the family unit, the foundation of our society. Further considerations are the stigma of illegitimacy and resultant disinherison attendance upon a successful disavowal action.” (Emphasis in original.)

Despite the more liberal approach to disavowal as a result of Act 430 of 1976, Louisiana still adheres to its strong policy of protecting innocent children born during marriage against attacks of paternity. We maintain the integrity of that policy by holding the strict construction of Art. 189 exclusive and its time limitation applicable to any entitlement under R.S. 9:396. See Mock v. Mock, 411 So.2d 1063 (La.1982).

Whether the lower court maintained an exception of no right or no cause of action isn’t clear. But since Art. 189 is peremptive an exception of no right of action is appropriate and can be supplied by the district or appellate court ex proprio motu. Therefore, the judgment of the district court is affirmed.

AFFIRMED.

      . The petition sets forth August 16, 1980 whereas plaintiff testified he was divorced April 16, 1980.

      . La.C.C. Art. 184
      The husband of the mother is presumed to be the father of all children born or conceived during the marriage. (Amended by Acts 1976, No. 430, § 1.)
      La.C.C. Art. 185
      A child born less than three hundred days after the dissolution of the marriage is presumed to have been conceived during the marriage. A child born three hundred days or more after the dissolution of the marriage is not presumed to be the child of the husband. (Amended by Acts 1976, No. 430, § 1.)

      . La.C.C. Art. 189
      A suit for disavowal of paternity must be filed within one hundred eighty days after the husband learned or should have learned of the birth of the child; but, if the husband for reasons beyond his control is not able to file suit timely, then the time for filing suit shall be suspended during the period of such inability. (Amended by Acts 1976, No. 430, § 1.)

      .LSA-R.S. 9:396

      . The validity of blood tests to disprove paternity has been established and was the only basis for disavowal in Dufrene v. Dufrene, 366 So.2d 1016 (La.App. 1st Cir. 1978). Compare Dugas v. Henson, 307 So.2d 650 (La.App. 3rd Cir.) writ denied, 310 So.2d 851 (La.1975) and Brugman v. Prejean, 288 So.2d 702 (La.App. 3rd Cir. 1974).

      . La.C.C. Art. 187
      The husband can disavow paternity of a child if he proves by a preponderance of the evidence any facts which reasonably indicate that he is not the father. (Amended by Acts 1976, No. 430, § 1.)

      .La.C.C. Art. 191 (Repealed by Acts 1976, No. 430 § 2)
      “In all the cases above enumerated, where the presumption of paternity ceases, the husband of the mother, if he intends to dispute the legitimacy of the child, must do it within six months from the birth of the child, if he be in the parish where the child is born, or within six months after his return, if he be absent at the time, or within six months after the discovery of the fraud, if the birth of the child was concealed from him; or he shall be barred from making any objection to the legitimacy of such child.”

      . The exception of no cause of action was sustained in Redmon v. Redmon, 391 So.2d 916 (La.App. 2nd Cir. 1980).


source: Caselaw Access Project

author: WARD, Judge. WILLIAMS, Judge,

license: Public Domain

text:
    CHRYSLER CREDIT CORPORATION v. Ethel W. HARRIS.
    No. 12968.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 9, 1982.
    Dissenting Opinion July 28, 1982.
    Wayne E. Garrett, Charbonnet & Char-bonnet, New Orleans, for appellant.
    Roger B. Jacobs, Jacobs, Loeffelholz & Trestman, New Orleans, for plaintiff-appel-lee.
    Before BYRNES, WARD and WILLIAMS, JJ.
   WARD, Judge.

This is an appeal by Ethel Harris from a District Court summary judgment in favor of Chrysler Credit Corporation [Chrysler Credit].

The judgment, commonly called a deficiency judgment, was for the balance due on a promissory note signed by Mrs. Harris on August 30, 1977, when she purchased an automobile from Star Chrysler-Plymouth Sales, Inc. [Star Chrysler]. Chrysler Credit financed the purchase and became the holder of a consumer credit contract which contained a promissory note and a chattel mortgage. Almost one year later, on August 28, 1978, Mrs. Harris filed a redhibi-tory action against Star Chrysler in the District Court, and thereafter, in November 1979, she stopped making payments on the promissory note. In January 1980, Chrysler Credit sued on the note and mortgage for executory process; judgment was rendered in favor of Chrysler Credit, and Mrs. Harris’s automobile was seized and sold. After the sale of the automobile, the proceeds were applied to Mrs. Harris’s note, and Chrysler Credit sued for a deficiency judgment for the balance. Mrs. Harris answered by denying she owed Chrysler Credit anything under the note. She also pleaded as a defense her suit for redhibition that was pending against Star Chrysler, and she asked for judgment dismissing Chrysler Credit’s petition. After the answer, Chrysler Credit moved for summary judgment and supported that motion with an affidavit of its collection manager.

Counsel for Mrs. Harris did not file either an affidavit or a deposition, or answers to interrogatories, or admissions by Chrysler Credit to oppose the motion for summary judgment; rather, he was content to rely on the answer in his pleadings. The Trial Judge 'nevertheless rendered summary judgment in favor of Chrysler Credit, which Mrs. Harris now appeals. She contends the pleadings, her answer, were sufficient to defeat the motion for summary judgment, and the Trial Judge erred when he granted it.

We disagree. We believe the Trial Judge correctly rendered summary judgment, and we affirm for the following reasons.

While it is true that summary judgment is not to be used as a substitute for a full trial of controverted fact issues, its purpose is to provide a procedural device to determine before trial whether there is a genuine issue of fact, and “. .. judgment sought shall be rendered ... if the pleadings, depositions, answers to interrogatories, and 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.” LSA-C.C.P. Art. 966.

In this case the pleadings of Chrysler Credit stated a cause of action, and the affidavit supported the pleadings. The affidavit showed that Mrs. Harris had not made the payments required by the terms of her promissory note; that Chrysler Credit, through executory process, had the automobile seized and sold; and that the proceeds of the sale were applied to the note, but a deficiency remains.

Mrs. Harris did not file counter-affidavits; she filed an answer, however, which not only was a general denial, but also was an affirmative defense:

ANSWER
NOW INTO COURT, through undersigned counsel comes Ethel W. Harris, defendant herein, and in answer to said suit does state:
I.
Articles I, II, III, IV and V are denied.
AND NOW FURTHER ANSWERING, defendant does state:
1.
That she offered to tender said vehicle to petitioners herein as a result of defects in said vehicle, but that petitioners did refuse said tender; that she has filed a suit herein entitled “Ethel W. Harris versus Star Chrysler-Plymouth Sales, Inc.,” bearing number 78-12739, setting forth various allegations relative to defects in said vehicle, and therein requesting rescission of said sale; that she does plead those allegations contained in the above-mentioned suit as if copied in extenso.
WHEREFORE, the premises considered, petitioner prays that this answer be deemed good and sufficient, and after all due proceedings that there be judgment-herein in favor of Ethel W. Harris, dismissing the petition of Chrysler Credit Corporation, at its cost;
Petitioner further prays for all general and equitable relief.

Because Mrs. Harris did not file counter-affidavits, or any other proof, there is not a genuine issue of fact as to matters alleged in Chrysler Credit’s petition. Chrysler Credit, therefore, was entitled to summary judgment, unless Mrs. Harris’s affirmative defense, unsupported by affidavits, was sufficient to defeat a motion for summary judgment.

We do not believe Mrs. Harris’s pleadings were sufficient, for several reasons: they did not show there was a genuine issue of fact as to matters alleged by Chrysler Credit, and they were not, moreover, supported by an affidavit. Although Mrs. Harris, in her answer, referred to pleadings in a different lawsuit filed in another section of court, that record was not offered as evidence. In other words, she did nothing but file an answer. For that proposition we rely on LSA-C.C.P. Art. 967, which states:

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

Further, we believe that Chrysler Credit did not have to refute by affidavit or otherwise the allegations made by Mrs. Harris in her affirmative defense to obtain a summary judgment. Facts to support an affirmative defense are largely within the knowledge of the defendant who alleges them, and the defendant should bear the burden of supporting those allegations by affidavits or other means. We believe this view is supported by the law and common sénse. The law, LSA-C.C.P. Art. 967, requires that the response be supported, and we interpret this to include pleadings which allege an affirmative defense. Common sense dictates this rule. Otherwise, the wildest unsupported allegations in an answer will defeat any motion for a summary judgment.

We recognize that there are exceptions to the rule that the failure of an adverse party to file counter-affidavits will result in a summary judgment. The exceptions to the general rule, however, “all stand for the principle that counter-affidavits need not be filed by the party opposing summary judgment if the motion for summary judgment has not been properly made.” Harris Mortgage Corporation v. Johnson, 383 So.2d 801 (La.App. 1st Cir. 1980). As an example, in Blount v. Exxon Corporation, 395 So.2d 355 (La.App. 1st Cir. 1981), the First Circuit found that the lower court erred in granting summary judgment when affidavits filed by Exxon, the moving party and the only one to file affidavits, failed to establish there was not a genuine issue of material fact. In that case Exxon attempted to show that the activity of an injured worker was regularly done as a part of the “normal course of its trade, business or occupation.” The affidavits from Exxon were inconclusive for this factual determination, and it was not entitled to judgment as a matter of law. Similarly, in Chaisson v. Domingue, 372 So.2d 1225 (La.1979), where it was undisputed that the teacher-plaintiff had been injured while attending a school band concert, summary judgment was not appropriate where it was unclear whether the moving party, her professional liability insurer, was entitled to judgment as a matter of law. Finally, in Thompson v. South Central Bell Telephone Co., 411 So.2d 26 (La.1982), the Supreme Court found that even though South Central Bell was the only party to file affidavits, it was not entitled to summary judgment because there were contradictions on factual issues created by the depositions and the affidavits stated conclusions of law rather than evidentiary facts.

Hence, even if affidavits are unanswered, a motion for summary judgment should not be granted if the moving party is not entitled to it as a matter of law or if the affidavits themselves show a material issue of fact. This is not so in the instant case. We do not believe the exceptions are applicable, and the general rule applies. Mrs. Harris could not rest on the allegations in her pleadings.

We, therefore, hold that when the purchaser of consumer goods raises the affirmative defense of redhibition, that defense must be supported by affidavits to defeat a motion for summary judgment. The affidavits of the moving party do not have to negate the defense, because the defense may make allegations which only the defendant can substantiate. To hold otherwise would permit any defendant to prevent summary judgment merely by filing an affirmative defense.

Because we conclude that Chrysler Credit was entitled to summary judgment as a matter of law, we do not find it necessary to consider whether, as Chrysler Credit contends, Mrs. Harris’s defense of redhibition has prescribed or to consider any of the reasons Chrysler Credit and the Trial Judge relied upon for summary judgment.

We, therefore, affirm and assess cost of this appeal and the trial of the motion for summary judgment to defendant.

WILLIAMS, J., dissents with written reasons.

WILLIAMS, Judge,

dissenting.

I respectfully dissent. In the instant case, the affidavit filed by Chrysler Credit Corporation failed to mention any of the affirmative defenses raised by the defendant in her answer. The amendments to Articles 967 and 968 of the Code of Civil Procedure are unclear as to whether a party opposing a motion for summary judgment must file affidavits if the movant has failed to supply affidavits that address all of the issues of fact presented by the opponent’s pleadings. See Aetna Insurance Co. v. Morgan & Lindsey, Inc., 238 So.2d 212 (La.App. 4th Cir. 1970).

In light of this ambiguity contained in the procedural requirements for summary judgment and the restrictive view with which the courts must consider summary judgment, I must dissent. See Chaisson v. Dominique, 372 So.2d 225 (La.1979).


author: KLEES, Judge.

text:
    Hilda ALLEN v. Alvin Thomas BALL, and Liberty Mutual Insurance Company.
    No. 12994.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 16, 1982.
    Alexander N. Breckinridge, IV, Montgomery, Barnett, Brown & Read, New Orleans, for defendant-appellant.

      Marilyn A. Boothe, Law Office of Marvin C. Grodsky, New Orleans, for plaintiff-ap-pellee.
    Before REDMANN, SCHOTT and KLEES, JJ.
   KLEES, Judge.

Plaintiff-appellee, Hilda Allen filed suit against Alvin Thomas Ball and his automobile liability insurance carrier alleging that she sustained personal injuries in an automobile accident that occurred on December 29, 1979. Thereafter, plaintiff supplemented her petition joining as a defendant, Casualty Reciprocal Exchange, her own automobile liability insurance carrier, alleging that Alvin Thomas Ball was an underin-sured motorist.

Trial on the merits was had and a judgment was rendered in favor of the plaintiff and against defendants, Alvin Ball and Liberty Mutual Insurance in the sum of Ten Thousand and no/100 ($10,000.00) Dollars (Liberty’s policy limits) and against defendant-appellant, Casualty Reciprocal Exchange, in the amount of Four Thousand Eight Hundred Fifty-Seven and 20/100 ($4,857.20) Dollars, together with interest and costs.

Following the rendition of judgment, the plaintiff settled with defendants, Ball and Liberty, and dismissed, with prejudice, her claim against those parties. The instant appeal is taken solely by defendant-appellant, Casualty Reciprocal Exchange, and is directed to the propriety of the Trial Court’s award to plaintiff of Five Thousand Seven Hundred Dollars for “loss of income”.

At the time of the accident, Hilda Allen was employed by Security Industrial Insurance Company as a “debit manager”. This job involved soliciting new business, collecting the debit and keeping accurate bookkeeping records, and making monthly reports to the company.

Following her accident the plaintiff was able to perform some, but not all of her job duties. What she was unable to perform, her retired husband, August Allen, performed on her behalf. Although the plaintiff was not performing all of her duties she continued to be compensated by “Security” on a monthly basis. The trial court ruled that she was entitled to an award for loss of income as the services provided by her husband were considered a collateral source of income.

The issue before this Court is whether the trial court erred in considering the services provided by the plaintiff’s husband a collateral source of income from which the defendants were not entitled to credit. We agree with the findings of the trial court and affirm.

In Henderson v. Travelers Indemnity Company, 158 So.2d 365 (La.App.2d Cir. 1963) the plaintiff sought damages for wages lost while he was incapacitated. The appeals court denied his request noting that during his period of incapacity he was paid. The court noted that his work was performed by hired help and with the assistance of his family and specifically denied his damages request because he could not prove what he paid to have work done for him.

This case appears to support the appellant’s claim that the community has suffered no loss since the plaintiff was paid and that the work performed by her husband was not a collateral source.

In Borde v. Travelers Ins. Com., 281 So.2d 797 (La.App. 3rd Cir. 1973), in a claim by a husband for the loss of a wife’s earnings the Court stated:

“the pertinent issue was the husband’s claim for the loss of his wife’s earnings as theatre manager. The evidence showed that prior to her accident she had been employed as the manager and following the accident nothing was awarded for her loss of $75 per week for 13 weeks. She received half of her pay as sick pay for nine weeks, and additionally her husband was substituted as manager and received the full pay until his wife returned to work. During the three months she was off the job she continued to do the book work. Plaintiffs argued that defendants were not entitled to the credit for the fact that Mrs. Borde’s husband took over his wife’s work as manager, but the case turned on the fact that both Mr. and Mrs. Borde were performing the work as manager, both before the accident and during her three month period of disability, and plaintiffs were not entitled to an increase in the award.”

This case too would appear to support the appellant, however, the thrust of the case centers around the fact that the husband and wife had worked as managers before and after her accident. This fact was recognized by this court in Folse v. Fakouri, 361 So.2d 887 (La.App. 4th Cir. 1978) and the court declined to follow Borde.

In Folse, supra, the plaintiff was an owner-operator of a school bus. He was permanently disabled as a result of an accident. He employed others to drive his bus after his accident and shortly thereafter his wife began to operate the bus. The court reasoned that since the plaintiff could no longer drive the bus he was entitled to compensation for the salary he would pay others, including his wife.

The reason most often stated for the existence of the collateral source rule is that the defendant should not recover from outside benefits provided to the plaintiff or procured by the plaintiff.

In Spizer v. Dixie Brewing Co., 210 So.2d 528 (La.App. 4th Cir. 1968), a doctor’s services were provided as a professional courtesy with no intention of receiving payment. This court held that whether or not the services were rendered as a professional courtesy was immaterial. Even if the services would have cost the plaintiff nothing the defendants could not profit from this benefit.

Our review of the record shows that the significant part of Mrs. Allen’s duties required her to visit all of her accounts monthly, collect the premiums from them and re-visit those accounts which were delinquent. Her salary was based upon a percentage of the collections made, as well as a bonus if the “collection credits” were good. In January, 1980, Mr. Allen who was not employed began handling these collections from his wife who because of the pain from the accident could not make them. He continued to make these collections through October, 1980 working on an average of 12 days per month making up to 84 calls on some days. Without his help, the collections would not have been made, or Mrs. Allen would have had to hire someone to do this work, as her income depended upon the collection. The trial court in his reasons for judgment observed “the Court was quite favorably impressed with the middle-aged couple who enjoy a good relationship with the insurance companies debits they worked successfully for 20 years; with their desire to remain productive wage-earners, etc.”

The defendant-appellant argues that the work performed by the plaintiff’s husband was merely the fulfillment of his obligation to support his wife as stated in Article 119 of the La. Civil Code. In support of this argument they cite James v. State, 154 So.2d 497 (La.App. 4th Cir. 1963). In that case this court held that nursing services rendered by a wife to her paraplegic husband were part of her obligation of assistance to her husband pursuant to Article 119 and therefore no recovery could be had by the plaintiff for such services. The court cited Planoil, Vol. I, Pt. I, 917, p. 525, wherein he proclaimed that the duty of assistance “enhances the personal care to be given an ill or infirm spouse.”

However, in the present suit the services provided by the plaintiff’s husband were not in the form of personal care to an infirm spouse. In addition to this distinguishing characteristic between James, supra and the present suit this same court seemed to partially erode this principle when it held that when one spouse becomes incapacitated and the other terminates employment to care for that spouse, the tort feasor will be liable for the lost wages caused by the employment termination. Berry v. Gulf Coast Const. Co., 229 So.2d 368, 372 (La.App. 4th Cir. 1969).

These cases were discussed in the decision of Wright v. United States, 507 F.Supp. 147 (1981). There the plaintiff, a paraplegic, sought compensation for the nursing services of his wife. The court examined the Louisiana cases relating to future nursing care and held that the plaintiff was entitled to an award for this care. The defendant argued that such care was the obligation of his spouse under LSA C.C. Article 119 (as is the argument here) but the court rejected this argument. The following language in Wright, supra, at page 162, sums up the court’s reasoning:

“Although mention was made of plaintiff’s wife several times in the court’s opinion, the court accepted the fact that plaintiff-husband was receiving professional nursing care at the time of trial and that he would need it in the future without commenting on any duty to care which his wife might owe him. There was no attempt to tie the wife to a husband who the court described as “a brain damaged, bed-ridden invalid” who would be “an invalid for the rest of his life.” To hold otherwise, as the defendant would have it, would in effect put the tort-feasor in the position of a third-party beneficiary of the duty of spouses to care for each other imposed by Louisiana law to the detriment of the innocent spouse. There is no indication in this later case that this is the present posture of Louisiana law. Moreover, it should be emphasized that this award is not to compensate a wife for future nursing services she will perform. It is to provide an injured person with the money he will have to expend to hire someone to do the things for him which he would have been able to do for himself or which would not have to be done at all but for the negligence of the party responsible for his injury.”

It is clear to this court, that the trial court considered the collections necessary to keep the “good relationship with the insurance companies whose debits they worked successfully for 20 years”. His findings that the husband’s services were a collateral source of income from which the defendants were not entitled to credit are correct.

Accordingly, the judgment of the trial court is affirmed, costs to be borne by defendant-appellant, Casualty Reciprocal Exchange.

AFFIRMED.

      . In 1979 the Supreme Court reversed the Appeals Court, but it did so only to increase the amount of the award. 371 So.2d 1120 (La. 1979).


text:
    Frank LANDRY v. Steven K. FAULKNER, Jr., and William M. Barnett.
    No. 12998.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 16, 1982.

      Frank Landry, in pro. per.
    E. Phelps Gay, Christovich & Kearney, New Orleans, for defendants-appellees.
    Before REDMANN, SCHOTT and KLEES, JJ.
   KLEES, Judge.

In late 1977, Plaintiff retained Defendant-Faulkner to represent him in a lawsuit against Plaintiff’s tenant, Tropical Press, Inc., seeking to have the tenant pay for an increase in insurance premiums pursuant to a lease agreement. This suit was Civil Action No. 77-16183 of the Civil District Court for the Parish of Orleans. An answer on behalf of the tenant and its guarantor, Retail & Diversified Collection Bureau, Inc. was filed by their attorneys. On the morning of the trial of that lawsuit, February 13, 1979, the parties reached an agreement settling the case. The terms of the settlement were that Mr. Landry would receive $2,624.00 and in return would agree to a termination of the lease agreement and dismiss the lawsuit. Specifically, the tenant agreed to vacate the leased premises on or before April 30,1979, at which time, assuming all the terms and conditions of the lease were complied with, plaintiff agreed to execute a cancellation and termination of the lease wherein the tenant and its guarantor would be released from any further liability under that lease agreement.

This agreement was reduced to writing and was signed by Plaintiff. Upon signing the release the settlement funds were distributed to plaintiff, accepted by him and subsequently negotiated.

Sometime after this, plaintiff became upset by the manner in which the tenant vacated the premises. He took the position that since Tropical Press had left the premises in violation of the lease agreement, its obligations under the lease never actually terminated and he was entitled to continuing rent. He therefore requested Defendant-Faulkner to file a second lawsuit on his behalf, which lawsuit was Civil Action No. 79-8010. This lawsuit was tried before Judge Richard J. Garvey and resulted in a judgment for defendants, rendered on or about March 18, 1980. In his Reasons for Judgment, Judge Garvey found that the lease had been terminated by agreement of the parties on April 30, 1979. He further stated that if the tenant had caused some damage to the property, a suit for those damages would be in order.

At this point, Plaintiff became quite upset and began writing letters to Judge Garvey, Judge Early, and defendant attorneys regarding a supposed violation of Rule 16 of the Civil District Court for the Parish of Orleans and other complaints. Because of his inability to control Plaintiff in this regard, Defendant-Faulkner deemed it advisable to withdraw his representation of Plaintiff and accordingly wrote him a letter to this effect on June 17,1980. Defendant-Faulkner also advised Plaintiff that further pursuit of the litigation would be financially unsound because the defendants had gone through liquidation and had no apparent assets upon which to execute. Upon receiving this letter, Plaintiff was advised of the period of time in which to file an appeal and had over forty (40) days in which to retain another attorney and file such an appeal if he wished to do so. No appeal was filed and the judgment is now final.

Plaintiff subsequently filed this suit, first alleging that the settlement of his first lawsuit constituted a “non-legal oral agreement” in violation of Rule 16 of the Civil District Court for the Parish of Orleans; second claiming that Defendant-Barnett, who was Tropical Press Inc.’s attorney, advised him that he would personally supervise the exits of the lessees, for the benefit of the plaintiff to assure that the lessees left the premises in accordance with the terms of the release; and third, claiming that Defendant-Faulkner improperly terminated their attorney-client relationship leaving him without representation for appeal of his second lawsuit. Peremptory exceptions of prescription and no cause of action were filed by the defendants. After a hearing the exceptions were maintained and the plaintiff’s suit was dismissed.

Plaintiff appeals contending that the compromise entered into by the parties was invalid because it was in violation of Rule 16 of the Rules of Court for the Civil District Court for the Parish of Orleans. Rule 16 reads as follows:

No stipulation between or among attorneys or parties outside the presence of the Judge with respect to the proceedings in a case will be recognized by the Judge, unless it is in writing, signed and filed as a part of the record.

Plaintiff’s contention is without merit because Rule 16 does not prevent or preclude an “out of court” compromise entered into between the parties to a suit. Such a compromise is governed by Article 3071 of the Civil Code which reads as follows:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which everyone of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

In this case the execution of the compromise agreement by plaintiff, coupled with the distribution of settlement funds by the lessees and subsequent negotiation by plaintiff constituted a valid compromise under LSA-C.C. Art. 3071, Felder v. Georgia Pacific Corp., 405 So.2d 521 (La.1981).

The plaintiff in the present suit additionally argues that there was an oral contract with Defendant-Barnett, besides the written agreement relative to Defendant-Barnett’s personal supervision of lessee’s exit under the terms of the lease. However, there is wording in the release, which was reduced to writing after the parties verbally agreed, that is inconsistent with the plaintiff’s claim. This portion of the release reads as follows:

I warrant that no promise or inducement not herein expressed has been made to me; that in executing this Release, I am not relying upon any statement or representation made by any person or party released or their agents and representatives concerning the nature or extent of the losses or damages sustained by me or the legal liability therefore, or concerning any other thing or matter; that the abovementioned payment is received by me in compromise settlement and full satisfaction of all the aforesaid claims and demands, actions and causes of action whatsoever; that I am of full age and legally competent to execute this Release, and that before signing and sealing of this Release, I have fully informed myself of its contents and meaning and have so executed it with full knowledge thereof.

Since this language is inconsistent with the plaintiff’s claim that Defendant-Barnett promised to supervise the lessee’s exit to assure that it would be done in accordance with the terms of the release and since it was drafted and signed after this so-called oral contract the writing supersedes the oral agreement. The release is complete on its face and no parol evidence regarding an oral contract can be admitted to vary its terms.

Therefore, since the release speaks for itself and indicates that Plaintiff is not relying upon any statements or representations made by any persons or parties releases, the trial court properly concluded that the plaintiff has no cause of action against Defendant-Barnett for breach of any contractual duty.

Finally, the plaintiff, in essence, claims that Defendant-Faulkner improperly withdrew as his counsel leaving him without representation for an appeal.

The plaintiff merely states in his petition that Defendant-Faulkner terminated their attorney-client relationship leaving him without representation for an appeal. However, the plaintiff attached Defendant-Faulkner’s letter to his petition wherein Defendant-Faulkner indicated his reasons for withdrawal. He stated that it was unlikely that an appeal would be economically feasible since the defendant-lessees had gone into dissolution; and that Plaintiff’s letters to the judges and opposing counsel regarding the attorney’s responsibilities were inappropriate and left him with the feeling that he no longer felt he could represent Plaintiff.

As indicated earlier the court must accept as true the allegations of fact contained in the petition and the documents attached thereto and those allegations establish that Defendant-Faulkner did not terminate the attorney-client relationship without lawful cause. Defendant-Faulkner’s letter, an exhibit attached to the plaintiff’s petition, establishes that he and Plaintiff’s relationship had become antagonistic and that Plaintiff’s conduct stretched their relationship beyond the point where Defendant-Faulkner could deal reasonably with Plaintiff. These reasons amply support the termination of an attorney-client relationship. See Fishman v. Conway, 57 So.2d 605 (La.App.Orl.1952).

Appellees have answered this appeal seeking damages for frivolous appeal. Our reading of the record convinces us that Plaintiff has brought this appeal in good faith and accordingly we deny Defendant-Appellees’ claim; accordingly for the reasons previously discussed the judgment of the trial court is affirmed. Costs to be borne by appellant.

AFFIRMED.


author: SWIFT, Judge.

text:
    Daisy LaCOUR, et al., Plaintiffs-Appellants, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 82-20.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 1982.

      Führer & Flournoy, George A. Flournoy, Alexandria, for plaintiffs-appellants.
    Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, and William P. Crews, Jr. of Watson, Murchison, Crews, Arthur & Corkern, Natchitoches, for defendants-appellees.
    Before SWIFT, DOUCET and LaHAYE , JJ.

       Honorable Joseph A. LaHaye of the 27th Judicial District Court, State of Louisiana, participated in the decision as a Judge ad hoc.

   SWIFT, Judge.

In these two consolidated suits Daisy LaCour, her daughter, Conchita LaCour, and Charles Williams seek to recover damages for personal injuries allegedly sustained on December 5,1980, when struck by a ceiling tile that fell during a bingo game at the Elks Club in Natchitoches. The defendants are St. Paul Fire and Marine Insurance Company (St. Paul), the liability insurer of the owner-lessor of the building, and the Benevolent and Protective Order of the Elk, No. 1363, (Elks), the lessee. Each defendant filed a third party demand against the other. From a judgment rejecting Conchita LaCour’s and Charles Williams’ demands, but awarding Daisy La-Cour judgment in the sum of $4,352.90 against St. Paul only, the plaintiffs have appealed.

It is undisputed that a single piece of tile fell from the ceiling in the area of the building where the three plaintiffs were seated playing bingo. However, the testimony of the persons who were at or near the scene conflicted in many respects.

Daisy LaCour testified that the building which had a high ceiling was crowded and she was sitting near the end of one of the rectangular tables with Conchita close to her left. The dimensions of the tile were approximately one and one-half feet by two feet and it was heavy. Daisy was struck on the back of her head and neck and then the tile struck Conchita. She later learned that it also hit the people at the table behind her. Daisy continued to play bingo for a few minutes after being hit, but she left before the game was over because her neck and back began to hurt worse.

Conchita LaCour stated that a large piece of ceiling tile hit her on the back of the head and neck. She just sat there stunned and did not play her cards any more. They left approximately 10 or 15 minutes after the incident, about the same time as the bingo was over.

Charles Williams testified that the building was crowded. The LaCours were sitting at the table to his rear within “hand reach of them.” The ceiling was approximately 25 to 35 feet high and the tile was three to four feet long, about two or two and a half feet wide and from five-eighths to one inch thick. The tile struck him on the left side of his neck and across the shoulder. He was almost knocked out and remained seated to regain his composure. The bingo game continued, but he did not play. He did not see the tile hit anyone else, because he was playing his bingo cards when struck.

Wilson Cedars, the chairman of the bingo committee, testified that the Elks had not changed the ceiling after occupying the building. He had no prior warning that the tile was going to fall. The tables where the plaintiffs were sitting were approximately six feet apart and the space between the people at the tables was approximately two or two and one-half feet apart. When the tile fell from the ceiling, it descended in a flat position parallel to the floor. When he arrived at the scene the people who claimed to have gotten hit were arguing as to who was struck. No one indicated they had been hurt. The tile was light in weight and the people resumed playing the game. The bingo lasted about an hour and a half thereafter.

Winston Cedars, the son of Wilson Cedars, testified they had no prior warning as to the condition of the tile. He saw it strike a lady. Thereafter “the top of it fell and hit the man against the head and then fell between the chairs.” Cedars did not see any other female get hit. He stated that the tile was in an edgewise position when it struck the lady. This witness estimated the distance between the LaCours and Mr. Williams as approximately two and one-half to three feet. He believed the people involved in the incident continued to play bingo until it was over.

Willie Gongre, the manager of the Elks Club, testified that he inspected the premises every day and did not know there was any thing wrong with the ceiling until the tile fell. He went with a policeman to investigate the occurrence and noticed Mr. Williams had his hand on the middle of his back below the neck, but he did not indicate that he was in any pain. No lady complained about being hurt. Williams continued to play bingo. Gongre did not see him or any of the ladies leave until the bingo was over for the evening. He stated that he picked up the tile and it was light in weight. Gongre thought the bingo lasted about an hour and 15 minutes after the accident.

Paul Cardino, a carpenter by trade who was at the bingo game, testified that he went to the tables when the tile fell and heard no complaints of injury from anyone that had been hit. He believed everyone continued playing bingo. The game ended about an hour after the tile fell. Cardino also stated that he measured the tile several days later and found it was 14 inches wide, 32 inches long and one-half inch thick. The tile was made of lightweight Celotex material. He also measured the height of the ceiling to the floor, which was 13 feet three inches.

Addie Hardison testified that she was seated on Daisy LaCour’s left and saw the tile strike Daisy, her daughter and then another man. She said that Conchita was sitting on her mother’s right and that the tile hit the LaCours at the same time. It was a hard hit.

Brenda Williams, the wife of plaintiff, testified that she noticed the tile hanging from the ceiling when she entered the building, but she did not warn her husband. She saw the falling tile hit Williams on the back of his head and that it also struck two other people. It fell during the last game of the evening. They left and went to the hospital about five or ten minutes later.

All three plaintiffs went to the emergency room of the Natchitoches Parish Hospital that night and subsequently sought further medical attention.

Daisy and Conchita LaCour were seen the next morning by their family physician, Dr. Charles Cook. He did not testify, but apparently recommended that they see an orthopedist.

Dr. Baer I. Rambach, a Shreveport orthopedist, saw Daisy LaCour on December 16, 1980, and noted limitation of motion and moderate muscle spasms in her cervical spine region. The xrays and neurological examinations revealed no abnormalities. He recommended the plaintiff continue to wear a cervical collar, take mild analgesics and use moist heat intermittently. On January 6 she returned with the same complaints. The physician again noted limitation of motion in the cervical spine and recommended a physical therapist, some traction and exercises. Dr. Rambach last saw Mrs. LaCour on June 11,1981. He said that she still had limitation of neck motion and complained of pain and discomfort. New xrays revealed no significant changes. Dr. Rambach recommended that she continue with her exercises. He felt that the plaintiff was unable to teach from the date of the accident until the end of the semester in May, 1981. However, he opined that she would be able to resume her teaching duties in September, 1981.

Dr. Rambach also examined Conchita LaCour on December 16, 1980. He noted some tenderness in the back part of her head and neck. The xrays were negative. The doctor noted no bruises and said that his diagnosis of contusions to the back of the neck was based on the history given to him by the patient. He prescribed moderation of activities, aspirin or bufferin and moist heat to any tender areas. A full recovery was expected in six to 12 weeks.

Dr. Fresh, an Alexandria neurosurgeon, testified that he examined Conchita on February 9, 1981, for complaints of headaches and blurred vision. He diagnosed her condition as a mild head injury with post traumatic headaches, although there was no physical evidence of a trauma. The results of his tests were all within normal limits. He said that this type of headache is generally resolved within six months.

Charles Williams testified that he visited the Tioga Medical Clinic on December 6, 1981, because they had been treating him for sickle cell anemia and a previous back injury. He did not want to go into another life threatening “crisis” as he had in 1977 with his back injury. He stated that in this instance “the doctors got to it in time” and he did not have any such problem. “What I went in the hospital for was strictly for my neck not no sickle cell.”

The medical exhibits reveal that Williams was admitted to the Doctors’ Hospital of Tioga on December 6, 1980, complaining of neck pain and was finally discharged on December 16, 1980.

Dr. Robert K. Rush, a family practice specialist who had treated the plaintiff before, testified that Mr. Williams had a sickle cell crisis following a lumbar back strain in 1977 and nearly died. Thereafter he continued to have muscle spasms with restriction of motion in his back and neck for which he was taking the same medication they prescribed after the December 5, 1980, incident. Upon admission to the hospital on December 6 Williams was first seen by a Dr. Rudd and then by Dr. DeFee. His condition was diagnosed as an acute cervical strain. The xrays were negative. Dr. Rush did not know whether the plaintiff would have any residual from this accident, but he said that it did not take much to aggravate sickle cell anemia and bring on a crisis. This doctor also saw Williams on January 6 and 28, 1981, for similar muscle spasms and restriction of motion.

Dr. William J. DeFee, a family practitioner and Dr. Rush’s partner, said that on December 8 Williams complained of neck pain and had a sickle cell crisis with a hemoglobin of 8.8 grams per cent. This was consistent with his long standing sickle cell anemia. He thought the December 5, 1980, trauma could have accelerated or aggravated his sickle cell problem. However, neither Dr. Defee nor Dr. Rush testified as to just what aggravation may have occurred or what symptoms arose therefrom.

According to the trial judge’s written reasons for judgment:

“These conolidated cases are before the Court on petitions by CHARLES WILLIAMS, DAISY LACOUR and CONCHI-TA LACOUR in which they seek money damages as a result of personal injuries they allege to have sustained on December 5, 1980, when a 14 inch by 32 inch celotex (or some similar material) ceiling tile fell on their heads. They were seated at tables playing bingo when the tile fell from a 13 foot 3 inch ceiling. The Court concludes that the distance from the ceiling to the tips of their heads (the length of the fall) was approximately ten feet. The Court further concludes, from the non-specific evidence about the weight of the tile, that it was about the weight of a Sunday ‘New Orleans Times Picayune.’ All three plaintiffs claim they were the victim of a direct hit and the other (and apparently less injured) plaintiffs received only ricochet damage. The testimony indicates that the first point of contention on the night of the incident was between the plaintiffs as to who took the direct hit. However, they apparently did not argue long because the final bingo game of the night at this Elks Club sponsored bingo game was about to begin and since it had the biggest ‘pot’, all of the plaintiffs stayed for it. At the conclusion of the final bingo game all of the plaintiffs rushed to the emergency room of the Natchitoches Parish Hospital with neck complaints and thereafter saw a series of physicians with complaints running the gamut from bruises, whip lash and stiff neck to traumatic neurosis and aggravation of sickle cell anemia.
“The Court simply does not believe that three adults could sustain such severe injuries as a result of one 14 inch by 32 inch Celotex Ceiling Tile falling a distance of 10 feet. The evidence herein preponderates toward a finding, and the Court so concludes, that the tile struck DAISY LACOUR when it fell and if it struck CONCHITA LACOUR and CHARLES WILLIAMS at all, it was with insufficient force to cause injury and their claims are rejected.
“The Court is of the opinion that DAISY LACOUR sustained minimal physical injuries for which she should be compensated, but neither the medical depositions nor the personal testimony at trial indicate any serious, long term or disabling injury. The testimony indicates MRS. LACOUR already had planned a leave from her teaching duties for rest and recuperation and the Court does not believe, nor does the medical evidence indicate, that this slight blow should have disabled her for any period of time beyond a few hours, and certainly not for a period of six or seven months. MRS. LACOURS’ claim for lost wages is rejected.”

Liability of the insurer of the owner-lessor for the damages proved is rather clear. LSA-C.C. Article 2322 imposes liability upon the owner-lessor of a building to persons injured through its “ruin” whether caused by a vice in its original construction or through his neglect to repair it.

As the Supreme Court stated in Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978):

“The owner’s fault is founded upon the breach of his obligation to maintain or repair his building so as to avoid the creation of undue risk of injury to others. The owner is absolved from its strict liability neither by his ignorance of the condition of the building, nor by circumstances that the defect could not easily be detected. He is absolved from such liability only if the thing owned by him falls, not because of its defect, but rather because of the fault of some third person or of the person injured thereby, or because the fault is caused by an irresistible cause or force not usually foreseeable. Article 3556(14), (15), (usually, an act occasioned exclusively by violence of nature without the interference , óf or contribution by any human agency).
“See: Klein v. Young, 163 La. 59, 111 So. 495 (1927); Thompson v. Commercial National Bank, 156 La. 479, 100 So. 688 (1924); Barnes v. Beirne, 38 La.Ann. 280 (1886); Camp v. Church Wardens, 7 La. Ann. 321 (1852), Crawford v. Wheless, 265 So.2d 661 (La.App. 2d Cir., 1972); Anslem v. Travelers Insurance Company, 192 So.2d 599 (La.App. 3d Cir., 1966); Green v. Southern Furniture Company, 94 So.2d 508 (La.App. 1st Cir., 1957); Comment, 42 Tul.Law Rev. 178 (1967).
“Under the terms of Article 2322, several requirements for the imposition of liability under the article must be met: (1) There must be a building; (2) the defendant must be its owner; and (3) there must be a ‘ruin’ caused by a- vice in construction or a neglect to repair, which occasions the damage sought to be recovered.

Under the circumstances of this case we find that the loose ceiling tile, either from dry rot or faulty nailing, constituted a “ruin” within the meaning of Article 2322 and that St. Paul, as the liability insurer of the owner-lessor, is liable for any injury occasioned by the neglect to repair such condition.

Needless to say, this court is not entitled to substitute its findings of fact for the reasonable evaluations of credibility and reasonable inferences of fact made by the trial judge who heard the witnesses and evaluated their testimony. It is obvious from its reasons for judgment that the court was not impressed by the plaintiffs’ testimony and was convinced they were exaggerating their injuries. We must admit it seems incredible that these parties were injured to the extent they and their doctors claim by the ten foot fall of this lightweight piece of Celotex ceiling tile. However, we cannot completely disregard the testimony of other witnesses that all three plaintiffs were actually struck by the tile and the uncontradicted medical evidence that each of them sustained a mild neck injury as a result thereof. We certainly agree with the trial court’s determination that the injuries suffered by the plaintiffs were not severe, but we must conclude that they were actually injured by the falling tile and that each plaintiff is entitled to compensation for those injuries.

Conchita LaCour’s medical expenses totaled $371.50. The testimony of her treating physicians indicates there were no objective signs of injury to her head or neck, but each concluded that she did suffer a mild head injury based on the history and complaints stated by the plaintiff. Under these circumstances we feel that an award of $750.00 for general damages and $371.50 in special damages is sufficient.

Charles Williams’ doctors found that he sustained a neck injury, but they were principally concerned with his pre-existing sickle cell anemia and the possibility that the trauma might bring on a dangerous crisis. Dr. DeFee said that Williams was in a crisis when he first saw him, but the plaintiff testified that he did not experience any such problem in the hospital. If he did the symptoms must not have been of any great significance. All things considered, we believe that an award of $1,500.00 for pain and suffering plus his medical expenses of $2,836.40 would adequately compensate Mr. Williams for his injuries.

Daisy LaCour contends that the award of $3500 for her general damages is inadequate and that the judge erred in rejecting her claim for lost wages. Of course, it is well settled that an appellate court may not disturb a trial court’s award of damages unless the record clearly reveals that the trier of fact abused its discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); and Smith v. Hartford Accident & Indemnity Co., 399 So.2d 1193 (La. App. 3 Cir. 1981), writ denied, 406 So.2d 604 (La.1981). We are unable to find that the trial court abused its discretion as to the amount awarded for general damages. In regard to her claim for lost wages, we agree with the trial judge that none are due this plaintiff for the period covered by her sabbatical leave which began January 19,1981. She definitely had made her plans before the December 5 accident to take this leave from her duties as a school teacher for rest and recuperation from a knee condition. Consequently, she was not deprived of any sick leave or wages because of the Elks Club incident. She is entitled to recover, however, the amounts deducted from her pay to hire a substitute teacher before her leave began. We gather from her testimony that $21.00 per day was deducted from her check for 13 school days in December and $28.00 was deducted for each of the nine days she missed from school in January. Thus, she lost $525.00 in wages as a result of the falling ceiling tile and Daisy LaCour’s judgment will be amended to add this sum to her award.

For the foregoing reasons, that part of the judgment of the district court which rejected Conchita LaCour’s demands is reversed and judgment is hereby rendered in favor of Conchita LaCour against St. Paul Fire and Marine Insurance Company in the sum of $1,121.50 with legal interest thereon from date of judicial demand until paid. That part of the judgment in favor of Daisy LaCour against St. Paul Fire and Marine Insurance Company is amended to increase her award to $4,877.90 with legal interest thereon from date of judicial demand until paid. Otherwise, the judgment is affirmed. All costs of court, including this appeal, are assessed against St. Paul and Marine Insurance Company.

REVERSED AND RENDERED IN PART AND AMENDED AND AFFIRMED IN PART.

      . Williams v. St. Paul Fire and Marine Insurance Company, et al., 417 So.2d 1385, and this case.

      . H. L. Hughes, the owner-lessor, was originally joined as a defendant in the Williams case. He died after the suit was filed and his heirs were substituted in his place. However, the action was dismissed as to such parties when insurance coverage was stipulated.


text:
    Charles WILLIAMS, Plaintiff-Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 82-21.
    Court of Appeal of Louisiana, Third Circuit.
    July 28, 1982.

      Neblett, Beard & Arsenault, Richard J. Arsenault, Alexandria, for plaintiff-appellant.
    Watson, Murchison, Crews, Arthur & Corkern, William P. Crews, Jr., Natchitoch-es, Führer & Flournoy, George A. Flournoy, Alexandria, for defendants-appellees.
    Before SWIFT, DOUCET and LaHAYE , JJ.

       Honorable Joseph A. LaHaye of the 27th Judicial District Court, State of Louisiana, participated in the decision as a Judge ad hoc.

   SWIFT, Judge.

For the reasons this day assigned in the companion suit bearing our Docket No. 82-20, Daisy LaCour v. St. Paul Fire & Marine Insurance Company, 417 So.2d 1379, the judgment of the district court is reversed and set aside and judgment is rendered in favor of Charles Williams against St. Paul Fire and Marine Insurance Company in the sum of $4,336.40 with legal interest thereon from date of judicial demand until paid and all costs of this suit.

REVERSED AND RENDERED.


author: LEAR, Judge.

text:
    Clarion BAY, Jr. v. Ross MAGGIO, et al.
    No. 14956.
    Court of Appeal of Louisiana, First Circuit.
    July 28, 1982.

      J. Arthur Smith, III, Baton Rouge, John W. Porterfield, Jeanerette, for plaintiff-appellant Clarion Bay, Jr.
    Joseph P. Macaluso, Jr., Staff Atty., Dept, of Justice, Brady Louis Jones, III, Baton Rouge, for defendant-appellee Ross Maggio, Warden, Louisiana State Penitentiary, Etc., et al.
    Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

Clarion Bay, Jr., an inmate at the Louisiana State Penitentiary at Angola, sued defendants Ross Maggio, Warden, Louisiana State Penitentiary (LSP), the State of Louisiana, through the Department of Corrections, C. Paul Phelps, Director of the Department of Corrections, and fourteen individual employees of LSP. This suit was tried on the merits before a commissioner of the Nineteenth Judicial District Court, whose findings of fact and recommendations were adopted by the district court. Judgment was then rendered by the district court in favor of defendants and against plaintiff, dismissing plaintiff’s suit. From that dismissal, plaintiff has appealed.

The factual basis for this suit, the commissioner’s findings of fact and his conclusions of law, are set out in a well written report to the district court, which we adopt, in part, as follows:

“This is a suit for damages arising from alleged personal injuries received by the plaintiff, an inmate at Louisiana State Penitentiary at Angola. Three secondary issues are involved: damages due the plaintiff if his injuries amount to a violation of the plaintiff’s right to be free from cruel and unusual punishment; damages arising from improper medical attention received by the plaintiff subsequent to his injuries; and attorney fees due plaintiff in a claim arising under 42 U.S.C. 1983, 1988.

“This case centers on a reconstruction of events that took place on April 20, 1976, at the Louisiana State Penitentiary at Angola, Cellblock B. Certain facts are held in common by the plaintiff and the defendants and can be reviewed first.

“During a shakedown of the plaintiff’s cell, a dispute arose over some sheets being kept by the plaintiff, Mr. Bay. When it became apparent that the shakedown crew was going to take and not return the sheets, the plaintiff tore a 2 X 4 board from a window screen frame and began to menace the security officers, demanding the return of the property.

“Over the course of an hour or more, the plaintiff moved about the tier of the cell-block, all the while armed with his makeshift club. After several unsuccessful attempts to persuade the plaintiff to put the 2X4 down and return to his cell were made by different members of the prison staff, tear gas was used. This effort, too, was fruitless, as a breeze carried the gas back upon the officers who fired the cannis-ters.

“Finally, guards were sent out onto the tier to physically subdue the plaintiff. This was accomplished after a brief, but very violent, struggle. The plaintiff then was removed from the tier, searched, and ordered to change his clothes. He was taken from the cellblock to the prison hospital, where he was given medical attention for injuries received to his hands. Plaintiff was placed in isolation for fifteen days and then moved to Closed Cell Restriction (C.C. R.).

“The first problem facing this Court lies in deciding when and how the plaintiff’s hands and wrists were fractured in several places. According to the plaintiff, after he was subdued, searched, and in new clothing, he was brought to the lower tier lobby. There, while being held by defendants By-rageon, Mayeaux, and Rabalais, defendant Robert Brumfield hit the plaintiff’s hands, which were laid out on a step, with a baseball bat.

“The testimony of the plaintiff was denied by the four above-named defendants, who all said they neither hit the plaintiff nor heard any order that such a beating was to take place. Also present in the downstairs lobby were Claude Bordelon, Bert Dixon, and Bruce Beck. These defendants also testified that the plaintiff was brought down from the upper tier, through the downstairs lobby, and out of the cellblock without incident.

“The Court is aware that it is not unusual for fellow defendants, after a lapse of time, to agree upon a single set of facts. The defendants in this case testified that they did not know for certain how the plaintiff was injured. They assumed the fractures were received in the confrontation on the tier. If these assumptions and denials were unsupported by the remainder of the evidence, I might have found the plaintiff’s version to be more reasonable.

“The Court, however, finds that the weight of the evidence shifted with the testimony of three other defendant witnesses. Both Michael Beaubouef and William Kerr testified that they heard the plaintiff complaining of hand injuries while he initially was being removed from the upper tier to the upstairs lobby.

“During the Court’s questioning of Mr. Beaubouef, the defendant was asked:

“ ‘Q. Did you observe Mr. Bay at the time of being removed into the upper lobby?
“ ‘A. Yes, I did.
“ ‘Q. Can you describe what his condition was at that time?
“ ‘A. He was being removed from the tier; both arms were secured. He was being pulled, partially dragged, partially walking. He got outside. He said “my hand hurts.” I remember that. I said, “well, you’re going to the hospital.” That’s all I remember. He didn’t say anything else that I recall then. He was taken out.’ (Tr. p. 192).

“Even more enlightening was the testimony of Mr. Kerr, who at the time of the incident was an associate warden for treatment at the institution. Counsel for the plaintiff asked Mr. Kerr about the period immediately after Mr. Bay was subdued.

“ ‘Q. Do you remember telling Mr. Sam-aha that Clarion Bay appeared to be injured?
“ ‘A. I may have made that statement. If you are asking me if he appeared to be injured, I would say “yes, he appeared to be injured.”
“ ‘Q. Okay. How did he appear to be injured?
“ ‘A. How did he appear to be injured? It appears to me that his hands were hurt when he came off of the tier because he was complaining.
“ ‘Q. What did you see that led you to that?
“ ‘A. I said he was complaining about his hands.
“ ‘Q. What did he say?
“ ‘A. Well, my hands hurt.
“ ‘Q. Did he say that when he came off the tier?
“ ‘A. Well, before he came off the tier when they were picking him up. See, I was near him when they picked him up. I came out ahead of them, walked to that tier.’ (Tr., p. 220).

“The most impressive testimony of all was that of Ross Maggio, who was Warden of Louisiana State Penitentiary at the time, and who has since left there to become Warden of Hunt Correctional Institute.

“On direct examination, this exchange took place between Mr. Maggio and counsel for the defense:

“ ‘Q. Did you see how Mr. Bay was subdued?
“ ‘A. You know, as best I could. With 7 or 8 men there, it was very, very fast. He slung; he swung his 2 by 4 and [sic] officer blocked it with a bat. Maybe the man behind struck Clarion with a blow and then maybe I could see 3; you know, a few blows being struck. I immediately told them to back off which they did.
“ ‘Q. At that time, was Mr. Bay down on the — on the tier floor?
“ ‘A. When I got there, he was — he was down.
“‘Q. What did you do once — once, was down? he
“ ‘A. I instructed them to bring him out to the lobby when he—
“ ‘Q. You just testified that when you got there, he was down on the floor. What do you mean — got there from where?
“ ‘A. Well, I was just — I wasn’t any further than from the 2 of us, the distance from here to you, short, right behind the whole thing.
“ ‘Q. How many correctional officers would you say were between yourself and Mr. Bay?
“ ‘A. Five, six, seven — I don’t really recall.
“ ‘Q. Okay. You testified that you told them to remove him off of the tier after he was on the floor. How was he removed?
“ ‘A. He was drug out — a man had him under each arm, best I recall.
“ ‘Q. And where was he taken?
“ ‘A. He' was taken out to the lobby.
“ ‘Q. Did you follow them?
“ ‘A. I did. I was with them during all of this.
“ ‘Q. Which lobby was this?
“ ‘A. This was the second floor.
“ ‘Q. What occurred once Mr. Bay was in the lobby?
“ ‘A. Well, I remember he told me that they had hurt his hands or hurt his arms is what he told me.
“‘Q. What did he look like? Did he seem to be injured?
“ ‘A. He did. Each — as I recall, his two hands were sort of hanging like this. I instructed my people to get him over to the hospital.
‘“(THE COURT: Let’s let the record show that the description made by Mr. Maggio, the way the hands were hanging were limp writs [sic] were down with the elbows up. Is that right?
“ ‘A. Yes, sir.
“ ‘By Mr. Macaluso:
“ ‘Q. You say he stated something to you at that time?
A. He told me that his — I don’t recall if he said ‘they hurt, my hands or they hurt my arms.’ One of the two, but he made a statement.’ (Tr., pp. 310-312).

“The Court was very impressed by the candor exhibited by Mr. Maggio throughout his testimony. I am convinced that if events such as plaintiff alleges had indeed occurred,- Warden Maggio would have meted out disciplinary action at the time and would have testified to such actions in Court. As he gave testimony refuting such actions and which, along with the testimony of Mr. Kerr and Mr. Beauboeuf, supported the defense assumption that Mr. Bay was injured while being subdued, I recommend this to be the most reasonable interpretation of the evidence.

“As plaintiff, Mr. Bay must prove his case by a preponderance of the evidence. Mr. Bay has failed to carry the burden of showing that the injuries to his hands were deliberately inflicted by four members of the prison staff. I therefore recommend finding in favor of the defendants and rejecting the plaintiff’s demands. We can now proceed to the subsidiary issues in the case.

“Claim of Cruel and Unusual Punishment

“To begin with, it appears that no excessive force was used in subduing the plaintiff. Attempts were made for over an hour to persuade the plaintiff to return to his cell. When that failed, tear gas was used, and that effort also was unsuccessful. Only then were officers sent out on the tier. In view of the plaintiff’s physical size, which to this Court seemed about six feet four inches to six feet five inches tall and at least 250 pounds, sending in several officers armed with clubs appears to have been reasonable.

“The confrontation was brief, but extremely violent, as can be exhibited by the splintered fungo bat wielded by Officer Bruce Beck, the officer first onto the tier who made initial contact with the plaintiff. The struggle took place on a concrete walkway and the weapons of Mr. Bay and the officers were heard as they struck each other, the cell bars, and the iron railing. Considering the violence of the encounter and the physical surroundings of the struggle, Mr. Bay’s injuries can be all the more reasonably seen to have been received as the defense has assumed. The force used to subdue the plaintiff was reasonable and well within the limits imposed by the law.

“The First Circuit Court of Appeal affirmed the wide latitude afforded prison authorities in maintaining discipline within prisons. In Fulford v. Phelps, 365 So.2d 575 (La.App., 1st Cir., 1978), the following language of the Trial Court was affirmed:

“ ‘Prison authorities are and should be responsible for maintaining internal order and discipline and securing their institutions against escape. These administrators must have a great deal of discretion in accomplishing their purpose within constitutionally refined parameters.”

“Claim of Improper Medical Treatment

“I find that the plaintiff’s claims that he received improper medical attention following the incident also are not supported by the evidence. The plaintiff’s testimony is contradicted by other testimony and evidence presented at the hearing.

“Mr. Bay testified that after being treated at the prison hospital, he was taken to C.C.R. isolation and kept there for fifteen days without coming out, without being seen by anyone, and without receiving any medical attention. From the evidence presented, it would appear that the plaintiff was mistaken in his testimony.

“The medical records, as substantiated by the testimony of Dr. Thomas Beamon, indicate that Mr. Bay was treated immediately after the incident and was then seen by Dr. Beamon on April 22, April 26, and April 29, 1976. He was also seen by Dr. Kim on April 27 and by Dr. Boo on April 26. In fact, Dr. Beamon testified as to these visits when on direct examination by counsel for the plaintiff. These statements were not contested by the plaintiff, even though they directly contradicted the plaintiff’s own claim.

“Upon release from isolation, Mr. Bay was placed in C.C.R. proper. On May 6, 1976, Dr. Beamon reset the cast and fingers of plaintiff’s right hand in order to allow its better use. Dr. Beamon continued to examine the plaintiff on May 15, 1976, May 27, 1976 and after the casts were removed on June 9, 1976.

“Dr. Beamon’s evaluation of June 10, 1976, says of Mr. Bay: ‘Clinically doing okay. Begin active exercises of each joint. This was explained to the patient at some length; recheck in one month. Patient can now bathe and take care of himself. No field work for one month.’ (Exhibit D-4)

“According to the plaintiff, he received no pain medication. The record shows that Tylenol and Phenaphen 3 were prescribed. The plaintiff claimed that he could not bathe himself and was not given baths. The medical record showed, and Dr. Beam-on testified, that baths were ordered, and witness Herman Wallace, occupant of a nearby cell in C.C.R., testified that the plaintiff was occasionally allowed out of his cell.

“The plaintiff was injured in April, 1976, and was seen by an orthopedist the following September. Mr. Bay claims to have been requesting such an examination since the time of the cellblock incident. The medical record shows that as early as April 29, 1976, an orthopedist was scheduled to see the plaintiff. The entry of that date states that the orthopedist did not show up at the prison facility. Dr. Beamon explained the delay as being due to the summer staffing changes taking place at Earl K. Long Hospital in Baton Rouge and the penitentiary’s lack of control over the comings and goings of such specialists working out of Earl K. Long (Tr., pp. 91-92).

“The plaintiff raised a point of being allergic to codeine, an ingredient in Phena-phen 3, a medication taken by the plaintiff. This condition is noted in the medical file. At the time involved in this case, however, this allergy appears not to have been known. In the report of Mr. Bay’s annual examination of October 26,1976, a notation states that Mr. Bay had no known allergies. This would make a prescription of Phena-phen 3 reasonable. No evidence was presented to show that the plaintiff was unable to take the prescribed pain medication.

“The plaintiff’s contention that he was not given proper medical attention is unfounded. The medical record and the testimony show that plaintiff was being examined, cared for, and having his progress monitored for the entire period of his recovery. The medical care afforded the plaintiff was well within the standard of care required by law. These medical services need only be reasonable to satisfy the standard. (Brown v. State, 392 So.2d 113, La. App., 1st Cir., 1980)

“In view of my finding that the plaintiff’s injuries did not arise as claimed by Mr. Bay, and that he was properly cared for after the incident of April 20, 1976, I find that the plaintiff suffered no violation of his guaranteed right to be free from cruel and unusual punishment.

“Claim for Attorney Fees

“In 42 U.S.C. 1988, attorney fees are required only to be awarded to the prevailing party in a 42 U.S.C. 1983 action. As the plaintiff in this case has been unsuccessful in proving his claim, he has no right to any attorney fees.”

After carefully reviewing this entire record, including the extensive testimony and exhibits, we find that the commissioner’s findings of fact, as adopted by the district court, are reasonable and clearly supported by the evidence. In the absence of manifest error the judgment of the trial court will not be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For the foregoing reasons, the judgment of the trial court, dismissing plaintiff’s suit, is hereby affirmed. This appeal having been filed in forma pauperis, no costs are assessed against plaintiff-appellant.

AFFIRMED.


author: GARRISON, Judge.

text:
    Floyd ROOD v. Peter FINNEY, Jr. and United Press International, Incorporated.
    No. 13023.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 28, 1982.
    Writ Denied Oct. 8, 1982.
    M. H. Gertler, New Orleans, for plaintiff-appellant.
    Sessions, Fishman, Rosenson, Boisfon-taine & Nathan, Robert E. Winn and J. David Forsyth, New Orleans, and Baker & Hostetler, Bruce W. Sanford and Lee Levine, Washington, D. C., for defendants-ap-pellees.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GARRISON, Judge.

In August, 1979 plaintiff-appellant Floyd Rood filed this suit against United Press International (UPI) and Peter Paul Finney, Jr., a UPI staff reporter in New Orleans. Plaintiff sought $310,000.00 in damages for a statement printed in one version of a UPI news article, the original of which was written by Finney, concerning Rood’s unusual fund raising activities. The particular version of the news story involved was one of several rewrites done by the Dallas regional office of UPI, which appeared in the Houston Chronicle on October 4, 1978. Mr. Rood, a professional golfer, had been involved in unique and well-publicized golf activities since the 1950’s when he formed the “Floyd Rood Youth and Sports Foundation,” a tax-exempt organization devoted to his youth assistance work. A major involvement of his, over these years, was “highway golf.” In this activity, seeking substantial publicity for the project, Mr. Rood would embark on a cross-country tour, during the course of which he would hit golf balls across land and water. Money for the foundation would be raised from sponsors who would contribute a particular amount for each yard covered or who would purchase the golf balls used during the cross-country tour.

It was apparent that publicity was essential to this fund-raising operation. Rood employed advance men and public relations personnel to promote his activity in order to insure that he received the attention required in order to raise money for the fund. On one such golf tour, a clipping service counted over 350 newspapers reporting his activities. Rood had appeared on television and radio shows, had been featured in national magazines, and had been the subject of a book. The news article at issue in this case was originally written by Finney on October 3, 1978, at the beginning of one of Rood’s “highway golf” tours. The proceeds of this particular tour were going to be used to purchase trailers which would provide information concerning drug rehabilitation.

In connection with this tour, Finney interviewed Rood and subsequently typed his story into a video display terminal in the New Orleans office of UPI. Rood’s many fund raising campaigns over the previous 20 years were discussed. The news story stated that Rood was about to begin “his last hurrah, a 7.5 million-yard trek from New Orleans to Shelby, Montana, by way of Los Angeles.” Finney’s news story went on to explain that the money raised would help fulfill Rood’s dream of equipping 50 trailers with anti-drug abuse exhibits.

The third paragraph of the story, as originally typed and transmitted by Finney, read:

“From the Atlantic to the Pacific, Rood has nudged screamers down America’s interstates and rural dirt roads. For every person he has hit, he has missed millions, which is quite an accomplishment in 20 years of highway golf, the sport he invented to help solve the drug addiction problem.” (emphasis supplied)

Finney then transmitted the article by computer command over telephone lines to the UPI office in Dallas, which was the regional editing center for UPI. At some point subsequent to Finney’s transmission of the story from the New Orleans UPI office to Dallas its wording was altered. In one version of the article, the foregoing paragraph stated that “highway golf” was a sport invented by Rood to help solve “a drug problem.” In another version of the article — and the version which is the subject of this particular litigation — which appeared in the Houston Chronicle, the concluding sentence appeared as follows “... highway golf, the sport he invented to help solve his drug addiction problem.”

Following the appearance of the story, as indicated, in the Houston Chronicle, Rood visited Finney in the UPI office in New Orleans where he objected to the news article’s use of the word “his” in connection with the subject of drug addiction. Inasmuch as that word had not been used by Finney in his original article, his reaction was one of surprise. He then wrote an additional story on the subject, describing Rood’s latest publicity campaign and praising his efforts to fight drug abuse in the United States. This follow-up story underscored the fact that Rood was hosting an “anti-drug addiction tournament” and that all of the proceeds on this tour would “help pay for his dream of 50 drug rehabilitation trailers.”

Mr. Rood may have requested some sort of clarification when he met with Finney, although he does not remember that. Neither Rood nor his attorneys ever wrote defendants requesting a retraction of any statement made in the initial article. Consequently, there is not for the record any evidence of a formal retraction demand. Following Rood’s visit to Finney, neither Rood nor his attorney contacted the news service until this lawsuit was filed in August, 1979.

In October, 1980 the defendants moved for summary judgment, which was granted by Judge Fedoroff on February 19, 1981. On April 15, 1981 the court granted Rood’s motion for summary judgment with respect to UPI and Finney’s reconventional demand for attorney’s fees and costs, except with respect to court costs, and partially denied defendants’ motion to tax costs and attorney’s fees.

Because of the primacy of our concerns for freedom of the press and freedom of speech, the constitutional standards of the United States and the State of Louisiana exercise a threshold impact on this case. Thus Mr. Rood, clearly discernible as a “public figure”, was required to establish with convincing certainty that Mr. Finney and United Press International acted with actual malice — which is to say, with knowledge of falsity or with reckless disregard of the truth. New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964).

With regard to the practicability and efficacy of summary judgments when defamation actions are brought against news media, Louisiana has clearly recognized that such defendants are entitled to this remedy where plaintiffs clearly are unable to establish a prima facie case. The summary disposition is an “effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press.” Mashburn v. Collin, 355 So.2d 879, 891 (La.1977). See also Shaefer v. Lynch, 406 So.2d 185, 187 (La.1981), in which the Louisiana Supreme Court held that such a defendant “is constitutionally entitled to summary dismissal of a libel suit unless plaintiff can show malice.” (emphasis supplied)

As the trial judge clearly recognized, the case at bar fell well within these parameters and its disposition of the plaintiff’s suit by summary judgment was proper. The judgment below is therefore affirmed.

AFFIRMED.


text:
    DEPARTMENT OF CORRECTIONS, LOUISIANA STATE PENITENTIARY v. Sheila A. CAGE.
    14832.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.
    Brady Louis Jones & Annette R. Seng, Asst. Atty. Gen., Dept, of Justice, Baton Rouge, for appellant.

      Mary E. Howell, Howell, Kellogg & Bayer, New Orleans, for appellee.
    Laura Denson Holmes, Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for George Hamner, Director Department of State Civil Service.
    Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

In October of 1979, Sheila A. Cage (Cage), appellee, was employed with permanent status by the Department of Corrections at the Louisiana State Penitentiary (LSP) as a sergeant. For failing to report for duty on October 27, 1979, after having been instructed to do so, she was suspended from her position on October 31, 1979. By letter dated November 6, 1969, under the signature of C. Paul Phelps, Secretary, Cage was notified that the oral suspension was confirmed, and she was being terminated effective November 14, 1979. Cage appealed this suspension and termination to the Civil Service Commission, which, in an opinion dated May 8, 1981, granted her appeal and ordered her reinstated to her former position with back pay. The agency has now appealed that decision of the Civil Service Commission.

Cage had failed to report for duty on election day in April, 1979. Because of this absence, her supervisor, Captain Barr, had placed her on leave-without-pay status for the day involved and recommended a reprimand. In failing to report for work on election day, Cage had relied on Civil Service Commission Rule 11.23(e). Based on this, and because no notice had been afforded the employees that they would be expected to report for duty on election day, Warden Butler revoked the attempted disciplinary action taken by Captain Barr.

In order to avoid a recurrence of this situation, and to ensure adequate staff for security purposes, Warden Butler issued a memorandum dated September 27, 1979, to all employees, which informed them that they would be expected to report for scheduled duty on election day, October 27. The memorandum also informed them that they should make arrangements to vote before or after their shift, or to vote by absentee ballot. Evidence in the record indicates that Cage had notice of this memorandum by October 4, 1979. While she denied that she had read or had been informed of the contents of the memorandum at that time, the evidence clearly indicates, and Cage herself admitted, that she was aware of the memorandum at least nine days prior to October 27. On October 26, Cage spoke with Captain Barr and requested civil leave for election day, explaining that she was relying on Civil Service Rule 11.23(e) in making this request. Captain Barr refused her this leave, and referred her to Major Teer. Major Teer read Cage the September 27 memorandum dealing with election day and refused her the requested leave. She did not pursue the matter further, but that evening informed the LSP staff that she would not report for work the next day. Cage did fail to report for work on October 27, 1979.

Civil Service Rule 11.23, entitled “Civil, Emergency, and Special Leave,” provides, in pertinent part, as follows:

“An employee shall be given time off without loss of pay, annual leave, or sick leave, when
“(e) voting in a primary, general, or special election which falls on his regularly scheduled work day, provided not more than two hours of leave shall be allowed him to vote in the Parish where he is employed and not more than one day to vote in a Parish outside the one where he is employed.”

In its May 8 opinion in this matter, the Civil Service Commission, interpreting Rule 11.23(e), stated, in part:

“The fact that employees were given notice that they must appear for duty as scheduled on election day does not vitiate Civil Service Rule 11.23(e). That rule mandates the granting of leave to employees under certain circumstances. The appointing authority could have denied appellant eight hours of leave, but they could not deny her sufficient leave to travel from West Feliciana Parish, her place of employ, to East Baton Rouge Parish, where she votes, and back.” [Emphasis by the Commission.]

We do not disagree with the Civil Service Commission’s interpretation of this rule (quoted above), and recognize that an administrative agency may interpret its own rules, and such an interpretation becomes part of the rule. McNeely v. DHHR, 413 So.2d 594 (La.App. 1st Cir., 1982); Sawyer v. Central Louisiana Electric Company, 136 So.2d 153 (La.App. 3rd Cir. 1961). However, we find that the commission’s application of this rule, and especially as interpreted, and therefore its conclusion of law, is incorrect.

The record establishes that Cage was familiar with the rules of the civil service. In fact, it was Cage herself who cited these rules, chapter and verse so to speak, to her superiors. She had been involved in the April incident concerning this rule and the agency’s position, and the record indicates that she was present at a meeting with her superiors and the Secretary of Corrections, C. Paul Phelps, at his office, prior to the October incident. We further find that, although Cage had adequate prior notice of the agency’s position, she took the matter no further than speaking with Captain Teer. She did not speak with his superiors, nor did she seek advice and/or assistance from the Civil Service Commission prior to election day. While we agree with the Civil Service Commission’s opinion that the agency’s memorandum and policy in this regard was incorrect, we find that Cage had other reasonable alternatives available to her. The agency’s policy and order did not ask Cage to do anything illegal, immoral, unethical, or in dereliction of her duties. Nor would it have in fact prevented her from voting on election day. She could have followed the agency’s directive by voting after work and then sought a remedy through the agency’s or the Civil Service Commission’s grievance procedures. She chose to do none of these things, but rather, took it upon herself to interpret Rule 11.-23(e) and, according to the commission’s conclusion of law, she in fact misinterpreted this rule. As the commission stated, Cage was entitled only to “sufficient time” to vote, and did not have the right to take eight hours of leave on election day.

Even taking Cage’s argument in its best light, and considering the commission’s conclusion of law as to what amount of leave she was entitled to, we find that Cage was insubordinate in taking eight hours of leave after having had her request to do so denied. Cage was not disciplined for taking “sufficient leave” to vote on election day, as the commission has found she was entitled to, but rather for taking eight hours of leave which she was not entitled to and which was not approved.

Cage was employed as a tower guard. The evidence indicates that her absence from work on election day required her replacement with other security personnel, who were taken away from their regular assignment. This left the agency shorthanded and created a serious security situation. We find that the conduct complained of by the appointing authority impaired the efficiency of the public service, and bears a real and substantial relation to the efficient operation of the public service in which the employee engaged. Department of Public Safety v. Rigby, 401 So.2d 1017 (La.App. 1st Cir. 1981).

In light of previous disciplinary action taken against Cage, which was confirmed by the Civil Service Commission in a separate appeal, and has not been challenged by her, together with her disobedience of direct orders in the context of this highly sensitive situation requiring strict security, we find that the agency’s action in terminating Cage was not unreasonable.

For the foregoing reasons, the decision of the Civil Service Commission is reversed and the termination of appellee, Sheila A. Cage, by the Department of Corrections is hereby reinstated, and all details concerning appellee’s suspension and termination are to be returned to her personnel file. All costs are to be paid by appellee, Sheila A. Cage.

REVERSED.


text:
    Deborah H. SMITH v. G. H. FLUID COMPANY, et al.
    No. 14859.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.
    Gordon Hackman, Boutte, for plaintiff-appellant.
    James E. Wright III, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendants G. H. Fluid Co. Travelers Insurance Co.
    Douglas W. Truxillo, Lafayette, for defendant N.L. Industries, Inc.
    R. Scott Ramsey, Berwick, for defendant-appellee Professional Seafarers, Inc.
    Before LEAR, CARTER and LANIER, JJ.
   LEAR, Judge.

Deborah H. Smith, plaintiff-appellant, was the mother of Thomas E. Smith, who was employed by defendant-appellee, G. H. Fluid Company (G. H.). On January 19, 1980, while in the employ of G. H., Thomas E. Smith fell off a barge and drowned. Thereafter, appellant filed suit against G. H. and its insurer. The Travelers Insurance Company (Travelers) in the United States District Court for the Eastern District of Louisiana in a suit entitled “Mrs. Deborah H. Smith, wife of/and Thomas G. Smith v. G. H. Fluid Services, Inc. and Travelers Insurance Company”, Civil Action No. 80-1110, Section “L”. In that suit, appellant alleged that her cause of action was based on the drowning of her son on January 19, 1980, and appellant sought damages for the death of her son.

After filing of the above referred to lawsuit, in consideration of the amount of $35,-000.00 paid to her, appellant entered into a compromise agreement with appellees and others, whereby she released and discharged appellees and agreed to dismiss the above referred to lawsuit. Appellant, through her attorney, then filed a “Motion To Dismiss” in the above referred to federal lawsuit. On June 24, 1980, a United States district judge signed an order dismissing said lawsuit, with prejudice. That judgment of dismissal is now final.

On January 19, 1981, appellant filed this instant suit in state court against G. H. and Travelers, seeking damages for the wrongful death of her son, Thomas E. Smith, on January 19, 1980. Appellees then filed a peremptory exception urging the objection of res judicata, based on, among other things, the prior dismissal of the above referred federal lawsuit. The trial court sustained appellees’ exception and dismissed appellant’s suit with prejudice. Appellant now appeals that dismissal.

Louisiana Civil Code Article 2286, which sets out the essential elements which must be present to support a plea of res judicata, provides as follows:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

We find that in both the prior federal suit and this instant suit the thing demanded, monetary damages, is the same. We further find that both suits are founded on the same cause of action, that is, the drowning death of appellant’s son while in the employ of G. H. We further find that, at least as to appellant and appellees, the parties are the same in both suits and the demand is formed by them against each other in the same quality.

In addition to the sustaining of ap-pellees’ exception of res judicata, appellant complains that the trial court did not allow her to amend her suit, alleging that La.C. C.P. Article 934 requires such. However, we find that Art. 934 requires the trial court to allow amendment, rather than dismissing the suit, only where the grounds of the objection pleaded by the peremptory exception may be removed by such an amendment. Where the grounds for the objection cannot be so removed, the court must dismiss the suit. Appellant cannot remove the grounds for the objection, as nothing can be done by her to change the allegations of the prior suit, its dismissal or the finality of that judgment of dismissal. Thus, the trial court was correct in dismissing appellant’s instant suit.

For the above and foregoing reasons, the judgment of the trial court in favor of G. H. Fluid Company and The Travelers Insurance Company and against Deborah H. Smith, sustaining appellees’ exception of res judicata is hereby affirmed. All costs, both at trial and on appeal, are to be paid by plaintiff-appellant, Deborah H. Smith.

AFFIRMED.

      . While we note that appellee is referred to herein as “G. H. Fluid Company” and is named in the prior federal suit as “G. H. Fluid Services, Inc.” appellant has at no time alleged that these parties are not one and the same.