author: JASPER E. JONES, Judge.

text:
    Eullis H. JOHNSON, Plaintiff-Appellee, v. HARRY JARRED, INC., Walsh Watts, Inc., David Billingsley d/b/a Billingsley Engineering Company, Inc., Gahagan Gas Company, Inc., Traders & General Insurance Company, Ronald L. Sawyer and Jack Sterret, Jr., Defendants-Appellants.
    No. 14337.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.

      Abadie & Kohnke by Peter J. Abadie, Jr., New Orleans, for plaintiff-appellee.
    Mayer, Smith & Roberts by Walter O. Hunter, Jr., Shreveport, for defendants-appellants.
    Before HALL, JASPER E. JONES and FRANK W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

This is an executive officer negligence action based upon a natural gas blowout and fire which occurred during the drilling of a gas well on October 26, 1973 in Red River Parish. The cause of action arose prior to the enactment of Act 147 of 1976 amending LSA-R.S. 23:1032, which now precludes such actions.

Defendants, Ronald L. Sawyer, President of Sawyer Drilling & Service, Inc., and Traders & General Insurance Company, his liability insurer and the workmen’s compensation carrier of Sawyer Drilling & Service, Inc., appeal a judgment rendered against them for personal injury damages sustained by plaintiff in the gas well blowout in the amount of $225,000, based upon the jury verdict in this amount. The insurer was given credit in the judgment for the workmen’s compensation and medical expenses paid by it prior to trial. Defendants contend there was no evidence to support the judgment against them. The insurer alternatively contends that the judgment should have contained a provision giving credit for all compensation benefits paid until the judgment is finally satisfied, and further that the judgment should contain a provision that all workmen’s compensation liability subsequently accruing in favor of plaintiff and against the insurer be offset by that portion of the judgment in excess of the amount of actual offset to which Traders is entitled to at the time the judgment is satisfied.

Plaintiff answers the appeal contending the jury had deducted the credit to which the insurer was entitled (for compensation and medical expenses paid) from the sum which plaintiff was entitled before the jury determined the amount of the award to be paid by defendants.

Plaintiff was employed by Sawyer Drilling & Service, Inc. as a roughneck on Russ Realty Co. # 2 well which was being drilled in the Gahagan gas field in Red River Parish, Louisiana. On the afternoon of his injury plaintiff was working on the floor of the rig with his supervisor, L. M. Sinclair, the driller, and a fellow roughneck, Percy Denkins. As the three of them prepared to make a connection (add on an additional stem of drill pipe) they observed beneath the floor of the drilling platform bubbling from the hole being drilled, and very soon after making this observation concluded the bubbling was the result of natural gas coming from the hole which was then at a depth of between 900 and 1000 ft. Because of the danger created by the presence of the natural gas, the driller instructed plaintiff and Denkins to shut off the machinery operating the rig. Denkins declined, and hastily departed from the floor of the rig. The driller cut off three of four diesel engines used in running the rig while plaintiff cut off the power plant. The driller was attempting to stop the fourth diesel engine when it backfired and an explosion and fire immediately occurred, which blew plaintiff from the rig onto the ground. Though he was severely burned, he crawled to safety under a flame of fire that extended some 70 ft. from the floor of the drilling rig. Den-kins returned to the floor of the rig and removed the driller who was severely burned and then carried the driller and plaintiff several miles from the rig where they were met by an ambulance which carried them to a hospital in Bossier Parish. The driller died several days later from injuries sustained by him in the explosion and fire. The well cratered and the drilling rig was a total loss. Plaintiff was totally and permanently disabled to return to any type of outside work as a result of his severe burns.

The estimates of the witnesses as to the time between the time of their realization that gas was coming from the drilled hole and the occurrence of the explosion and fire varied from IV2 minutes to 4 minutes. Plaintiff, inter alia, contended that Sawyer, President of his employer, was negligent in that he failed to provide the necessary safety devices which would have made it possible for plaintiff and his co-employees to have prevented the occurrence of the explosion and ensuing fire which seriously injured plaintiff. The principal safety devices which plaintiff contended were absent from the drilling rig were the existence of a blowout preventer, a gas detector, heavier drilling mud which would have prevented the gas from coming to the surface, and a centralized switch which could have automatically cut off all four of the diesel engines without requiring that they be cut off individually.

Plaintiff’s testimony and that of his coworker, Denkins, both of whom had extensive experience in drilling of oil and gas wells for more than 20 years, was that these safety devices would have avoided the occurrence of the accident. They testified these safety devices should have been available on the drilling rig. This testimony also was to the effect that Sawyer had designed the drilling program that was in effect at the time of the accident.

After plaintiff had presented this evidence and rested, defendants filed a motion for a directed verdict, contending that plaintiff had failed to produce any evidence that Traders was the liability insurer of Sawyer, and further contending that there was no evidence produced by plaintiff which established that Sawyer was guilty of any negligence that brought about the accident which caused his injury. Defendants’ attorney in his opening statement to the jury stated that Traders & General was the liability insurer of Sawyer. The trial court overruled defendants’ motion for a directed verdict. Defendants then produced the testimony of Sawyer, a Petroleum Engineer with some geological experience. He testified that he had designed the program for the drilling of Pugh-Huckaby No. 1 Well, which was a producer at 7200 ft., and which was located approximately 3000 ft. from the well where plaintiff sustained his injury. He testified that in the preparation of the determination of the manner in which this well was to be drilled, that he made extensive investigations into findings determined by prior drilling activities in the area from the following sources:

(1) Louisiana Department of Conservation reports applicable to Gahagan gas field;
(2) The logs of numerous other wells drilled in the Gahagan gas field;
(3) Scout reports of other oil companies concerning their experiences and findings on wells drilled by them;
(4) The records of mud logging companies concerning their findings in connection with services rendered by them on wells drilled in the Gahagan gas field; and
(5)Records of drill bit suppliers concerning information compiled by them in connection with the use of their drill bits used in drilling wells in the Gaha-gan gas field.

Sawyer testified that his review of the evidence from the above outlined sources established he could anticipate no unusual geological drilling problems until the drilling reached a depth of 3500 ft. where salt water would be encountered. Sawyer testified that based upon this information, he had drilled a surface hole on the Pugh-Huckaby well to a depth of 1800 ft. before installing surface casing. He testified that until he reached the 1800 ft. depth and installed his surface casing, that he installed no conductor pipe, no blowout prevent-ers, no gas detection devices, nor used any heavier mud to control any gas encountered in drilling of the hole. He testified that no unusual geological findings were encountered other than the expected salt water at 3500 ft. in the drilling of Pugh-Huckaby well which was completed without incident at a depth of approximately 7200 ft. Sawyer testified that he adopted the same drilling program for Russ # 2 that he used for the Pugh well. He had a blowout prevent-er on location of Russ # 2 which he intended to install on the surface casing which he intended to place in the hole after the drilling reached a depth of 1800 ft.

The evidence establishes that sometimes in the drilling of oil and gas wells that there is installed at the very commencement of the drilling operation a large diameter pipe that goes into the hole for a depth of some 300 ft. which is cemented in place and the drill stem and surface casing installed in the hole is placed inside of the conductor pipe. The conductor pipe has a two-fold purpose, one of which is to prevent cave-ins around the hole at relatively shallow depths immediately following its commencement, and the other purpose of the conductor pipe is to provide a pipe upon which gas blowout preventers can be installed prior to the later installation of surface casing.

Although this record is extremely scant on the function of a blowout preventer, we deduce that such a device, when installed upon a conductor pipe cemented into the earth can be closed by a drilling crew to shut off the escape of gas encountered in the drilling operation to prevent a fire and a resulting explosion and cratering of the well. Sawyer testified he seldom used a conductor pipe and even more seldom used it with blowout preventers. He acknowledged that he had drilled some wells for other operators who had required him to install conductor pipe equipped with blowout preventers when drilling commenced.

The evidence further establishes that on the offset well drilled to replace the one on which plaintiff was injured and the first three subsequent wells following it drilled by plaintiff’s employer, that conductor pipe was installed on each of them equipped with blowout preventers.

Lee Kyzer, a Petroleum Engineer of extensive experience, testified that he seldom used a conductor pipe with a blowout pre-venter attached in the drilling operations supervised by him. He acknowledged that while drilling wells for Gulf Oil Company he had been required to use conductor pipe equipped with blowout preventers. His testimony with regard to this requirement of Gulf establishes that Gulf made a practice:

“. . . to use blowout preventers. Not that they were afraid of anything, it was just their practice to use blowout pre-venters.” [emphasis ours]. Id. Tr. 278.

Both Sawyer and Kyzer acknowledged that gas detection devices were frequently used on drilling rigs, but both of them testified that they were never installed until surface casing was first set. These devices have a buzzer which was placed upon the floor of the rig to immediately warn the drill crew that gas had been encountered in the drilling hole. Sawyer and Kyzer both testified they were unaware of any single switch which could have been installed upon a drilling rig, the turning off of which would stop simultaneously all diesel engines used in the drilling operation. The testimony of Sawyer and his expert witness, Kyzer, was corroborated by Jack M. Sterret, Jr., the drilling supervisor for plaintiff’s employer, who was also a defendant herein, but who was adjudicated free of any negligence by the jury.

Defendants assign as error (1) the failure of the trial judge to sustain their motion for a directed verdict, (2) they contend the jury was guilty of manifest error and clearly wrong in determining that the evidence establishes plaintiff’s injuries were sustained by him as result of an accident caused by negligence of Ronald L. Sawyer, and (3) in the alternative, the insurer assigns as error the failure of the judgment to give Traders credit for workmen’s compensation benefits paid subsequent to trial date, and for future accruing liability for compensation benefits.

SHOULD THE MOTION FOR A DIRECTED VERDICT HAVE BEEN GRANTED?

The authority for a directed verdict is contained in LSA-C.C.P. art. 1810 A:

“A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.”

This provision in our law has as its source the Federal Rules of Civil Procedure and our jurisprudence has established that the criteria used by the federal courts for determining whether or not to sustain a motion for directed verdict is the correct test to be applied by our courts in applying the provisions of LSA-C.C.P. art. 1810 A. See Madison v. Travelers Insurance Company, 308 So.2d 784 (La.1975); Campbell v. Mouton, 373 So.3d 237 (La.App. 3d Cir. 1979); Joiner v. Downing, 383 So.2d 93 (La.App. 3d Cir. 1980). The test used for evaluating a motion for directed verdict in the federal jurisprudence is found in the U.S. Fifth Circuit case of Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969), wherein it is set forth as follows:

“ ‘On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence-not just that evidence which supports the non-mover’s case-but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantia] evidence opposed to' the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.’ ” [our emphasis]. Id. Campbell, supra, at 239.

The opening statement of defendant’s attorney to the jury acknowledging that Traders provided liability coverage for defendant Sawyer was in the nature of a judicial admission and establishes this coverage sufficient to justify the trial court’s action in overruling the insurer’s motion for summary judgment, even though plaintiff offered no other evidence of the insurance coverage.

The testimony of plaintiff and his witness, Denkins, of the absence of any safety devices in the drilling program to protect them in the event gas was unexpectedly encountered, provides evidence “of such quality that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions” as to the existence of negligence on the part of Sawyer that caused plaintiff’s injuries, and for this reason the trial judge was correct in overruling Sawyer’s and his insurer’s motion for directed verdict.

WAS THE JURY CLEARLY WRONG IN CONCLUDING PLAINTIFF’S INJURY WAS CAUSED BY THE NEGLIGENCE OF SAWYER, PRESIDENT OF PLAINTIFF’S EMPLOYER?

For there to be liability in an executive officer’s suit the employer must have a duty to the plaintiff which has been delegated to an executive officer who has breached the duty and brought about plaintiff’s injuries. Canter v. Koehring Co., 283 So.2d 716 (La.1973). In this decision the court recognized that actionable negligence is based upon general tort principles:

“The failure to act as required by the employment duty may deprive the third person of a protection owed him by the principal or employer, and such risk of harm because of the breach may have been reasonably foreseeable. Thus, the breach of the duty imposed by the employment or agency relationship may, under general tort principles, be actionable negligence because of the creation or maintenance thereby of an undue risk of harm to others.” Id. at 722.

In the decision of Smolinski v. Taulli, 276 So.2d 286 (La.1973), the supreme court defined actionable negligence as follows:

“Actionable negligence results from the creation or maintenance of an unreasonable risk of harm to others.” Id. at 288.

The general tort principles require those who handle combustibles to use a high or extraordinary degree of care. Surry v. Arkansas Louisiana Gas Company, 170 So.2d 133 (La.App. 2d Cir. 1964); Gregory v. Guarisco, 320 So.2d 354 (La.App. 2d Cir. 1975). This rule of law was applied to an executive officers suit in the case of Greene v. Wright, 365 So.2d 551 (La.App. 1st Cir. 1978), wherein an employee injured in a dynamite blast recovered from an executive officer. The court quoted with approval from Gregory, supra, at p. 559:

“The general tort principle obviously applicable to this case is that ‘those who use or handle dangerous agencies, substances or instrumentalities such as explosives, electricity, firearms, combustibles and fireworks, which might endanger persons or property, are held to a high degree or extraordinary degree of care.’ ”

In the supreme court case of Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395 (1963), the court made the following statement regarding natural gas:

“In Raphael Brothers v. Cerophyl Laboratories, 211 La. 354, 30 So.2d 116, this Court adopted the following succinct statement of the law pertaining to natural gas:
‘Natural gas, because of its highly inflammable and explosive character, is an inherently dangerous instrumentality. Those who handle and distribute it are charged with the duty to exercise that degree of care commensurate with its dangerous character and necessary to protect the public from any foreseeable injury therefrom.’

This principle was reiterated in Harris Drilling Co. v. Delafield, 222 La. 416, 62 So.2d 627, wherein we stated:

‘ * * * Those who handle and distribute a highly inflammable gas are charged with the duty to exercise a degree of care commensurate with its dangerous nature and necessary to protect the public from any foreseeable injury therefrom.’ ” Id. at 398-399.

Plaintiff’s employer had a duty to provide him with a safe place to work. LSA-R.S. 23:13 Plaintiff’s employer had delegated this duty to its President, defendant Sawyer, who set up the program for drilling the well where plaintiff was injured. The method established for drilling this well made no provisions for safety of the drilling crew in the event that gas was encountered in the drilling of the well before it reached a depth of 1800 ft., at which time presumably a gas detection unit and blowout pre-venters would have been installed.

The testimony of plaintiff and his coworker and the reasonable inferences therefrom provide a substantial basis for the jury to have reached the following conclusions:

A. If conductor pipe had been installed with a gas detection system at the commencement of the drilling of the well, plaintiff and his co-workers would have been earlier warned of gas and probably have had time to have cut off all the machinery and thereby prevented the explosion and fire, and
B. If the conductor pipe had been installed equipped with the blowout preventers without the gas detection system plaintiff and his co-workers by the use of the blowout preventers would have had sufficient time to shut off or reduce the volume of the escaping gas to have stopped the drilling machinery and avoided the fire and explosion.

The testimony of plaintiff and his witness as to the function of the conductor pipe and the blowout preventers for controlling the gas that they encountered is corroborated by the action of Sawyer in requiring conductor pipe and blowout preventers at the commencement of the drilling of the next four wells, which were drilled in the area of the well where plaintiff sustained his injury. While defendants offered some evidence tending to question the value of the conductor pipe equipped with blowout pre-venters in preventing a disaster similar to the one which here occurred, we conclude this evidence was entitled to little or no weight in light of the defendants’ use of these very safety devices on four wells subsequently drilled by them, and for that reason the jury was justified in rejecting it.

The principal thrust of defendants’ contention that Sawyer was guilty of no negligence was based upon his prior investigation which revealed no gas or other drilling problems existed in the area above a depth of 3500 feet. Sawyer and his witnesses testified that where no gas was anticipated, the custom was not to install conductor pipe equipped with a blowout preventer.

While neither plaintiff nor defendant offered expert testimony as to the certainty or uncertainty of the existence of gas at varying depths under the earth, we observe that it is generally known that the determination of the existence of gas, the quantity of it, and its depth and pressure is far from an exact science.

The evidence established that the well was being drilled in a known gas field where production had been found at depths as shallow as 5500 feet and that Sawyer planned to install the blowout preventer, which was on location, at 1800 ft.

There was also evidence that Gulf Oil Company, as well as other operators who had employed the services of plaintiff’s employer to drill wells, sometimes required the installation of the conductor pipe and blowout preventers at the inception of the well. There was no evidence that these third parties only used these safety devices when approaching known shallow gas deposits.

There are numerous decisions in our jurisprudence where practices that were customarily used in the drilling of oil and gas wells were found to be unsafe and those that engaged in them found to be negligent.

In the case of Harris Drilling Co. v. Delafield, 222 La. 416, 62 So.2d 627 (1952), the well drilling company contended the manner in which it installed a butane tank and a gas line running from it in the proximity of a board flooring installed at the drilling site was not negligence because the installation was done in a common and customary manner accepted in oil field operations. The court there rejected this contention with the following statement, to-wit:

“Harris Drilling Company contends, however, that it was the custom in oil field operations of this nature to place the butane tank and the pipeline therefrom in close proximity to the turnaround, that there was nothing unusual in the manner of its installation in this case, and that this custom or manner of installation should be considered by the court in determining the question of negligence, as it establishes that the drilling company was acting properly and prudently. Custom and usage may be regarded as a matter proper for consideration in determining whether or not sufficient care has been exercised in a particular case, but it is not conclusive or controlling, for the customary way of doing a thing may be a negligent way and may create a false standard of care, and, once negligence is established, such negligence cannot be justified by custom.” Id. at 629-630.

In the decision of Pennington v. Justiss-Mears Oil Company, 123 So.2d 625 (La.App. 1st Cir. 1960), wherein plaintiff’s husband was killed by a drill stem which fell through a drilling rig which was open on one side, the defendant contended that it was not negligent in failing to provide a belly-band enclosing the open side of the rig, which would have prevented the pipe from falling from it because it was standard practice in the industry not to so equip open sided drilling rigs. The court rejected the contention and approved the following statement with regard to the proper consideration to be given customary practices:

“ ‘Custom and usage may be regarded as a matter proper for consideration in determining whether or not sufficient care has been exercised in a particular case, but it is not conclusive or controlling for the customary way of doing a thing may be a negligent way and may create a false standard of care, and, once negligence is established, such negligence cannot be justified by custom.’ ” [emphasis added]. Id. at 632.

In the decision of Larned v. Wallace, 146 So.2d 434 (La.App. 3d Cir. 1962), the defendant, whose tongs had fallen and injured plaintiff after they were disconnected from the well rig preparatory to being removed from the rig, contended that the manner in which it performed the operation of disconnecting the tongs was one not negligent because the system was one used customarily for the performance of removal of the tongs. The court rejected this contention and made the following statement:

“The defendant argues that Roy’s method of removing the tongs is frequently used in the oilfields and therefore no negligence can be charged to him for following this customary practice. We agree the evidence shows this was a customary way of removing tongs but the evidence likewise shows, as pointed out above, that it was not considered customary or safe to raise a heavy object over a man’s head without warning. Furthermore, the law is well established that although custom may be considered in determining whether sufficient care has been exercised, it is not conclusive or controlling, because the customary way of doing a thing may be a negligent way, and may create a false standard of care. Once negligence is established, it cannot be justified by custom.” [citations omitted]. Id. at 438.

In the U.S. Fifth Circuit Court of Appeals case of McCormack v. Noble Drilling Corp., 608 F.2d 169 (5th Cir. 1979), the jury rejected defendant’s contention that the manner in which it made another drill stem connection with the drill stem at the top being secured only by a roughneck holding it with his hands, rather than securing it by use of available mechanical devices known as elevators, was not negligence because it was a common practice in the industry. The court there made the following statement with regard to this issue:

“Fn. 8. On the issue of whether Noble’s procedure was necessarily reasonably safe because the industry commonly ran casing in the same manner, the court instructed the jury as follows:
The fact that a defendant conducted its operations in a manner similar to [that] used by other companies is relevant to your consideration of its negligence, but that fact is not conclusive as to whether or not [the defendant] was guilty of negligence. . . [I]t remains for you to determine, from all of the evidence, whether the method being used at the time of plaintiff’s injury was in fact reasonably safe.

The court’s instruction was proper. “[W]hat ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.” Texas & Pac. Ry. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 623, 47 L.Ed. 905 (1903); see B & B Insulation, Inc. v. Occupational Safety & Health Review Comm’n, 583 F.2d 1364, 1370 (5th Cir. 1978); W. Prosser, Law of Torts § 33 at 168-69 (3rd ed. 1964); Restatement (Second) of Torts § 295A, comment c (1965).

No group of individuals and no industry or trade can be permitted, by adopting careless and slipshod methods to save time, effort, or money, to set its own uncontrolled standard at the expense of the rest of the community. If the only test is to be what has always been done, no one will ever have any great incentive to make any progress in the direction of safety. It follows) therefore, that whenever the particular circumstances, the risk, or other elements in the case are such that a reasonable man would not conform to the custom, the actor may be found negligent in conforming to it; and whenever a reasonable man would depart from the custom, the actor may be found not to be negligent in so departing.” Id. at 174.

The scope of our appellate review of the jury’s factual conclusion is set forth in the following quote from Canter v. Keohring Co., supra, at p. 724:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

We conclude the testimony of plaintiff and his witness, Denkins, to the effect that the conductor pipe, blowout preventer, and gas detection device should have been placed upon the well, together with statements by defendants’ witnesses that they sometimes use these safety devices and knew other operators that require them, provides a reasonable factual basis for the jury’s finding of negligence.

In view of the extraordinary care required of those handling natural gas, the custom of using safety devices for protection against gas only when approaching a known location of gas is an unsafe and negligent practice, as stated in Harris Drilling Co. v. Delafield, supra :

“. . . The customary way of doing a thing may be a negligent way of doing a thing and may create a false standard of care...” Id. 60 So.2d at 630.

The jury’s conclusion is not clearly wrong because it refused to exonerate Sawyer of negligence based upon defendants’ evidence that it is a custom of the industry not to use these safety devices until the well is approaching a depth of known gas location. The evidence established that gas in this field was not all located at one depth as it had been found at depths ranging from 5500 feet to 7200 feet, and the well which blew out had a contract drilling depth of 9000 feet. The jury was entitled to conclude that there exists a foreseeable risk of harm from unexpected natural gas at shallow depths when drilling in a known gas field, even though it has never been encountered there before.

WAS TRADER’S & GENERAL INSURANCE COMPANY ENTITLED TO A CREDIT IN THE JUDGMENT RENDERED ON THE $225,000 JURY AWARD FOR COMPENSATION AND MEDICAL EXPENSES PAID TO PLAINTIFF?

During the trial an affidavit was filed into evidence and read to the jury establishing that Traders had paid $20,-702.64 to plaintiff in workmen’s compensation benefits and paid medical expenses on plaintiff’s behalf in the amount of $8,556.82. Included within the trial judge’s instruction to the jury was the following instruction:

“Finally, if there should be a judgment rendered in favor of Eullis H. Johnson, you must render judgment likewise in favor of Traders and General Insurance Company, on their intervention claim for workmen’s compensation benefits, and medical expenses paid to date to Mr. Johnson or on his behalf, in the amount of $20,702.64, and $8,556.82 respectively.”

The Forms of Verdicts delivered to the jury by the judge at the time the jury retired for deliberation contained the following statement:

“If you find a verdict in favor of plaintiff against either of the above defendants, you must also grant to the defendant, Traders and General Insurance Company, a credit for the Workmen’s Compensation paid Plaintiff, totaling $20,702.64, and medical expenses of $8,556.82.”

When the jury returned, the Forms of Verdicts to the court it set forth therein:

“Verdict for Plaintiff, Eullis H. Johnson, for the sum of $225,000 dollars, against the defendants:
(a) Ronald L. Sawyer;
(c) Traders and General Insurance Company.”

The jury on the reverse side of the Forms of Verdicts placed there the following statement:

“We the jury find Mr. Sawyer neglient [sic] by a vote of 10-2. We hereby award Mr. Johnson the sum of $225,000 to be paid by Mr. Sawyer and Traders and Gen eral Insurance Company.” [our emphasis].

Evidence of the compensation and medical expenses paid by Traders to plaintiff was placed before the jury. The jury received specific instructions from the judge that Traders was to receive a credit for this amount so paid. We must therefore conclude that the jury at the time of their deliberations gave Traders the required credit, and the statement placed upon the verdict by the jury that the $225,000 was to be paid to plaintiff by Mr. Sawyer and Traders establishes conclusively that they had given credit against the sum to which they considered plaintiff was entitled, and that they were ordering the balance remaining after the credit deduction had been applied, i. e., $225,000, be paid to the plaintiff. Because the jury had given the credit as they were instructed to do, the trial judge erred when he again gave the credit in the formal judgment which was signed based upon the jury verdict. The effect of the trial judge’s actions was to give twice unto Traders & General Insurance Company credit for compensation benefits and medical benefits paid by it for and on behalf of plaintiff.

IS TRADERS & GENERAL ENTITLED TO A CREDIT FOR COMPENSATION PAYMENTS MADE SUBSEQUENT TO TRIAL AND PRIOR TO THE SATISFACTION OF THE JUDGMENT AND IS IT ENTITLED TO A CREDIT AGAINST THE JUDGMENT FOR COMPENSATION OBLIGATIONS ACCRUING SUBSEQUENT TO ITS SATISFACTION?

Traders and General Insurance Company is entitled to a credit against the judgment for sums paid by it in compensation to the plaintiff in excess of the $20,-702.64 that had been paid up to the time of the commencement of the trial of the case; and it is further entitled to a credit against all future weekly workmen’s compensation obligations accruing to plaintiff from Traders against that portion of the judgment remaining after Traders has received credit for additional sums actually paid, up to the extent of plaintiff’s remaining judgment. LSA-R.S. 23:1101 et seq.; Fontenot v. Hanover Ins. Co., 378 So.2d 461 (La.App. 3d Cir. 1979), 385 So.2d 238 (La.1980).

In order to conform the judgment rendered herein to our decision with regard to the credit to which Traders is entitled, we RECAST the third paragraph of the judgment to read as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Traders and General Insurance Company is hereby granted a credit against the judgment hereinabove awarded to plaintiff in the amount of all weekly workmen’s compensation benefits paid by it to plaintiff between trial date and the date of satisfaction of this judgment, and said Traders and General Insurance Company shall also have credit against all future accruing weekly workmen’s compensation obligations owed by it to the plaintiff to the amount of said judgment remaining after Traders and General Insurance Company has received the credit herein provided for the sums actually paid by it to plaintiff in weekly compensation.

The judgment appealed from as AMENDED by our recasting the third paragraph thereof is AFFIRMED at appellants’ cost.

      . LSA -R.S. 23:13-“Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees ...”


source: Caselaw Access Project

author: FRED W. JONES, Jr., Judge.

license: Public Domain

text:
    Barbara Braddock MOORE, Plaintiff-Appellee, v. Freddie Jim BRADDOCK, Defendant-Appellant.
    No. 14340.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    En Banc. Rehearing Denied Jan. 13, 1981.

      Cameron C. Minard, Columbia, for defendant-appellant.
    Paul B. Wilkins, Columbia, for plaintiff-appellee.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

From a judgment in favor of his former wife who filed a rule to make past-due child support payments executory, the defendant appealed, asserting that the trial judge erred in overruling an exception of no cause or right of action, an exception of nonjoinder of an indispensable party, and an exception to the jurisdiction of the district court. Plaintiff answered the appeal, asking for an increase in the attorney fee awarded by the trial court and, in addition, an attorney fee award for services rendered in connection with this appeal.

We amend and affirm.

In order that the primary issues presented by this appeal may be viewed in proper perspective, the following chronology of pertinent events, as established by the record, is presented:

(1) Parties to this action were judicially separated on October 28, 1976, with judgment ordering husband to pay $150 per month for the support of his minor child.

(2) Parties were divorced on May 18, 1978, with judgment continuing previous child support award.

(3) Because of defendant’s failure to pay child support, plaintiff began receiving ADC payments from the State in February, 1978.

(4) In March, 1979, State filed petition in Caldwell Parish juvenile court pursuant to La.R.S. 46:236.1, alleging that defendant was indebted to it for child support owed by virtue of an assignment of the rights of his former wife to child support and praying for judgment ordering defendant to pay petitioner $75 per month for support of his minor child. Defendant signed a consent form and judgment was rendered on March 16, 1979 ordering defendant to pay to the State for the use and benefit of his minor child the sum of $75 per month beginning on February 15, 1979 (parties stipulated at trial that these payments had been made). Plaintiff continued receiving only $49 per month from the State.

(5) Plaintiff filed this rule on November 28, 1979 seeking alleged past-due child support payments in the amount of $3,650 and attorney fees under La.R.S. 9:305 (no mention was made of statutory assignment to State, under La.R.S. 46:236.1 E, of $49 per month, nor of the juvenile court proceeding).

(6)Having overruled previously described exceptions, and after hearing on rule on March 19, 1980, trial court found that defendant owed plaintiff $3,200 for past-due child support (allowing credit for $75 per month payments pursuant to juvenile court order) and awarded $300 attorney fee.

La.R.S. 46:236.1(E) provides in pertinent part:

“By accepting aid to families with dependent children assistance for or on behalf of a child or children, the applicant or recipient shall be deemed to have made an assignment to the department of any right, title, and interest to any support obligation or arrearages owed to or for such child or children or caretaker up to the amount of public assistance money paid to or on behalf of such child or children or caretaker, for such term of time as such public assistance moneys are paid ...” (Emphasis added)

Appellant argues that plaintiff no longer had a cause or right of action because of this statutory assignment to the Louisiana Department of Health and Human Resources (the “State”). Further, he contends that since the State unquestionably had the right to sue for arrearages up to the amount it paid in ADC benefits, it was an indispensable party to this rule.

It is well established that accumulated child support is a vested property right until the judgment is altered or amended by a subsequent judgment or is legally terminated. Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954); Collette v. Olivier, 309 So.2d 894 (La.App. 3rd Cir. 1975); Mertens v. Mertens, 308 So.2d 506 (La.App. 3rd Cir. 1975). Consequently, at the time of the filing of her rule plaintiff clearly had the right to collect from defendant past-due child support payments exclusive of that arrearage assigned to the State. Therefore, the trial judge properly overruled the exception of no cause or right of action.

La.C.C.P. Art. 698 provides:

“An incorporeal right which has been assigned, whether unconditionally or conditionally for purposes of collection or security, shall be enforced judicially by:
(1) The assignor and the assignee, when the assignment is partial; or
(2) The assignee, when the entire right is assigned.

Under this article if the public assistance received by plaintiff equaled or exceeded the amount of the child support arrearage, the State would by law have been the assignee of the entire right to sue for the arrearage and an indispensable party to plaintiff’s suit. However, in our case the assignment was only a partial one since the total arrearage exceeded the total public assistance received by plaintiff on behalf of her minor child. Consequently, the State was not an indispensable party and that exception was properly overruled by the trial judge. The State was a necessary party. However, by failing to file a dilatory exception to that effect, defendant is deemed to have waived that exception.

Because plaintiff made a partial assignment to the State ($49 per month from February 1978 to date of trial-for a total of 25.5 months), she has no right to collect the assigned sum of $1245.50 from the defendant, since only the State may do this. The total arrearage due under the original child support judgment was $150 per month for 40.5 months for a total of $6075.00. Defendant was due a credit of $1825 for payments he made to plaintiff. Deducting from the original total arrearage the amount paid by defendant to plaintiff and the amount assigned to the State, the ar-rearage which plaintiff is entitled to collect from defendant is $3005.50.

Although the State was not made a party to these proceedings, we are required to construe the legal effect of the juvenile proceeding in which defendant was ordered to pay $75 per month for the support of his minor child, beginning February 15, 1979, since the trial court gave defendant credit for these payments on the arrearage owed plaintiff.

La.R.S. 46:236.1(F) provides:

“The department, except when it is not in the best interest of the child, may, without the necessity of written assignment, subrogation, tutorship proceedings, separation proceedings, or divorce proceedings, take direct civil action, including actions to establish paternity, in any court of competent civil jurisdiction to obtain child support from the person primarily legally responsible for the support of a minor child who is receiving aid to families with dependent children when that person has failed to support such child. The amount of such child support shall be set only by order of a court of competent jurisdiction or by the consent of the parties. A separate and distinct cause of action in favor of the department is hereby created, and suits brought under this provision need not be ancillary to or dependent upon any other legal proceeding.”

Construing the statute under which the State proceeded, the court in Collins v. Collins, 359 So.2d 744 (La.App. 4th Cir. 1978) commented:

“In its program of family and child support, Louisiana has authorized the Health and Human Resources Administration to develop and implement the obtaining of child support from parents, R.S. 46:236.1 et seq. One purpose of the statute is to place the ultimate burden of child support where it belongs, that is, on the parent and not on the taxpayers. While the State properly furnishes immediate relief for needy children, the scheme of the statute allows the State to pursue collection of child support from the person primarily legally responsible for that support. The State is granted a separate cause of action for enforcement of support, or it may proceed by assignment of rights of the custodial parent. In this case the State alleges assignment from the mother. Accordingly, the State stands exactly in the same position as the mother and has no greater rights than she has. The award of child support against the father must be based upon a balancing of the children’s needs and the father’s ability to pay. L.C.C. Art. 231.”

In its petition filed in the juvenile court the State alleged that the defendant was indebted to it for child support payments by virtue of an assignment of plaintiff’s rights to that support. The judgment ordered defendant to pay to the State $75 per month for the continuing support of the child.

Since the State was proceeding under its assignment from plaintiff, it stood in her shoes to enforce defendant’s civil obligation to support his child. However, that obligation had already been fixed in a civil proceeding and plaintiff had acquired a vested property right in the child support judgment rendered in those proceedings. Obviously, she cannot be divested of that right by the unilateral action of the State exercising its separate and distinct cause of action under La.R.S. 46:236.1(F). In other words, the consent judgment obtained by the State in the juvenile proceeding could not supersede the judgment obtained by plaintiff in the civil proceeding. It follows that we must construe the juvenile action as simply an effort by the State to exercise its right under the assignment to collect from defendant his child support arrearage up to the amount of ADC payments. Consequently, defendant is not entitled to a credit for payments made under this order on the arrearage owed plaintiff-after appropriate deductions are made as previously explained. Any complaint that defendant has with reference to the efficacy of the juvenile proceeding must be relegated to an appropriate adversary proceeding with the State.

Appellant also argues that the district court lost jurisdiction over plaintiff’s action to collect past-due child support because the Caldwell Parish juvenile court assumed exclusive jurisdiction when the State filed its petition in that court in March, 1979.

Since under our law plaintiff had a vested right in that portion of the child support arrearage that had not been assigned to the State, it logically follows that the State’s filing of a petition pursuant to the cited statutory provision in the juvenile court could not deprive plaintiff of her right to proceed in civil district court. Collette v. Olivier, supra, held that there was no concurrent jurisdiction as between a criminal court considering a non-support charge against a father and a civil district court granting a divorce decree which included a child support award. Likewise, in our case jurisdiction in the civil district court which awarded child support is separate and distinct from the jurisdiction of the juvenile court in which the State acted under its assignment to enforce the child’s right to support from its father. In fact, Section F specifically provides that “a separate and distinct cause of action in favor of the department is hereby created.” Therefore, the exception to the jurisdiction of the district court was properly overruled.

We conclude that the appellee is entitled to an additional attorney fee of $300 for services rendered in connection with this appeal.

For the reasons set forth, the judgment appealed from is amended to reduce the amount of past-due child support owed by defendant-appellant to plaintiff-appellee to $3,005.50, with legal interest on each past-due installment from due date until paid, and to increase the attorney fee award to $600.00.

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

      . This is buttressed by the fact that, rather than paying plaintiff the $75 per month received by the State from defendant, the State continued paying her only $49 per month.


text:
    WEBSTER PARISH SCHOOL BOARD, Plaintiff-Appellant, v. William J. GUSTE, Jr., et al., Defendants-Appellees.
    No. 14341.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    James M. Johnson, Asst. Dist. Atty., Min-den, for plaintiff-appellant.
    Thompson & Smith by Arthur G. Thompson, A. Mills McCawley, Asst. Atty. Gen., Shreveport, for defendants-appellees.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

Appellant, Webster Parish School Board, appeals a judgment rendered in this declaratory judgment action initiated by it requiring appellant “to pay those teachers of exceptional children who are currently receiving ten per cent supplemental pay, the supplemental pay they are now receiving.” Appellant made defendants in this declaratory judgment action the Attorney General of the State of Louisiana and forty-four teachers of exceptional children employed by appellant who were receiving the ten per cent supplemental pay. We affirm.

Act 275 of the 1960 Legislature required teachers of exceptional children to be paid an amount equal to their base pay, plus ten per cent of the base pay, and was to be found in LSA-R.S. 17:427:

“Teachers of exceptional children who are employed in the public schools of this state and who are certified under the latest requirements as set forth by the state department of education or the state board of education as teachers of exceptional children shall be paid an amount equal to their base pay plus ten per cent of this base pay.”

The provisions of LSA-R.S. 17:427 were amended by Act 607 of the 1977 Legislature to provide that school boards may pay teachers of exceptional children ten per cent above their base pay, but that they were not required to do so. The amendment further provided that no teacher of exceptional children who was receiving the ten per cent additional compensation could sustain a reduction in salary by virtue of the elimination of the mandatory requirement that teachers of exceptional children receive the additional ten per cent. The statute as amended by the 1977 Act reads as follows:

“Teachers of exceptional children who are employed in the public schools of this state and who are certified under the latest requirements as set forth by the State Board of Elementary and Secondary Education as teachers of exceptional children may be paid an amount equal to their base pay plus ten per cent of this base pay provided, however, that no teacher presently receiving base pay plus ten per cent will receive a reduction in pay.”

Appellant had paid its teachers of exceptional children the ten per cent supplemental pay required by Act 275 of 1960. The 1977 Act required that teachers previously receiving the supplemental pay continue to receive it and under these circumstances appellant is required by the 1977 Act to continue to pay its teachers of exceptional children the ten per cent supplemental pay, even though the 1977 Act eliminated the mandatory requirement that teachers of exceptional children receive the ten per cent supplement as was required by Act 275 of 1960. Appellant is not required to pay teachers of exceptional children hired in the future the extra ten per cent pay but it is authorized to do so by the 1977 Act.

There is a stipulation in the record which establishes that the school boards in some parishes in the state did not pay teachers of exceptional children the ten per cent supplemental pay required by Act 275 of 1960. The parishes of Bossier, Bienville, Caddo, Claiborne and Sabine are among the parishes that did not pay the supplement.

• Appellant initiated this action seeking a declaratory judgment that it was not required to continue to pay the extra ten per cent salary to the teachers of exceptional children who were receiving the pay supplement at the time of the passage of the 1977 Act. Appellant contends that the provisions in the 1977 Act which required it to pay ten per cent supplemental pay to its teachers of exceptional children who had theretofore received it is unconstitutional because it violates the following provision of the 1974 Louisiana Constitution:

“Art. 3, § 12(A)(8):
A. PROHIBITIONS. Except as otherwise provided in this constitution, the legislature shall not pass a local or special law:
(8). Regulating the management of parish or city public schools, the building or repairing of parish or city schoolhouses, and the raising of money for such purposes.”

Appellant contends that the 1977 Act is unconstitutional as applied to Webster Parish. The thrust of appellant’s argument is set forth in its brief as follows:

“The Webster Parish School Board complied with the provisions of Act 275 of the Louisiana Legislature. Its teachers of exceptional children were paid the ten per cent supplement as mandated by their legislation. Many school boards, including but not limited to Bossier Parish, Bienville Parish, Caddo Parish and Sabine Parish, chose not to follow the law. Subsequently, Act 607 of the 1977 Louisiana Legislature made the determination of the payment of supplemental compensation to teachers of exceptional children a discretionary matter with local school boards. However, this same act provided that no teacher who was receiving the supplemental pay could receive a reduction in pay. Those parishes which chose to flagrantly disregard the 1960 legislation were not only placed in a position of being excused from the operation of the 1960 legislation, but they were also not subject to the provision allowing no reduction in pay for their teachers of exceptional children, because they had never complied with the legal obligations imposed upon them by the 1960 legislation.”

Appellant contends that because the law requires it to continue to pay the supplement to pre-1977 teachers of exceptional children and does not require all other school boards to pay pre-1977 teachers of exceptional children the supplement that the statute becomes special as applied to it and violates the cited constitutional provision.

In the decision of State v. LaBauve, 359 So.2d 181 (La.1978), the supreme court set forth the jurisprudential definition of “local or special law” which is prohibited by the Constitution as follows:

“The jurisprudence interpreting Article 3, Section 12 of the 1974 Constitution (as well as Article 4, Section 4 of the Louisiana Constitution of 1921, the corresponding provision in the old constitution), indicates that a statute is local or special if its restrictions can operate upon or affect only a portion of the citizens or a fraction of the property embraced within the classification created, while a general law is one which operates equally and uniformly upon all persons brought within the relations and circumstances for which it provides or operates equally upon all of a designated class, founded upon a reasonable and proper classification.” Id. at 182 [emphasis added].

A statute is presumed to be constitutional and the litigant who contends the statute is unconstitutional has the burden of showing it. Ward v. Leche, 189 La. 113, 179 So. 52 (1938); Francis v. Louisiana State Livestock Sanitary Bd., 184 So.2d 247 (La.App. 1st Cir. 1966); City of Lake Charles v. Southern Pacific Transp. Co., 310 So.2d 116 (La.App.3d Cir. 1975).

Appellant does not contend that “teachers of exceptional children”, which was the class established by the 1960 Act to receive ten per cent extra pay, constitutes an unreasonable and improper classification, nor does appellant contend there was any provision within the Act which authorized an unequal application of the salary scale to any one within the class.

Appellant does not contend that teachers of exceptional children “presently receiving base pay plus ten per cent”, which was the class established by the 1977 Act which could receive no reduction in pay, is an unreasonable or improper classification, nor does appellant contend there is any provision within the Act which authorizes an unequal application of the salary scale to anyone within the class. Appellant argues that the 1960 Act was administered in an unequal manner and because of this the 1977 Act will necessarily apply in an unequal and special manner and for that reason the 1977 Act is unconstitutional.

A statute does not become special and unconstitutional because part of those charged with the application of it violate their duty and only apply it to part of the class to which it is applicable. Contentions that the manner in which an act was applied resulted in same being unconstitutional were made and rejected in the decision of Ward v. Leche, supra, and there the court stated 189 La. 113, 179 So. at p. 54:

“The sole basis for this action is the unconstitutionality of the act vel non. The question of the constitutionality of an act of the Legislature presents a question of law only, State v. Capdeville et al., 104 La. 561, 29 So. 215, and, consequently, any evidence as to the manner of enforcing the law has no bearing on its constitutionality.” [emphasis added].

The same contention was made and rejected in Kotch v. Board of River Port Pilot Com’rs., 209 La. 737, 25 So.2d 527 (1946), there the court stated 25 So.2d at p. 533:

“Generally speaking, the constitutionality of a statute must be determined not by what is done, but what it authorizes to be done under its provisions.”

The 1977 statute created an entirely different class from that created by the 1960 statute, the new class being “teachers of exceptional children receiving base plus ten per cent as their salary”, whereas the old class was all teachers of exceptional children. The 1977 Act is presumed to be constitutional. Appellant, upon whom the burden rests, has failed to show the classification created was not a reasonable and proper classification. All appellant has shown is that there are some pre-1977 teachers of exceptional children who will not fall into the class because their employers refused to comply with the 1960 Act. This does not establish that the new class is not “founded upon a reasonable and proper classification.”

We find the class created in the 1977 Act to be a proper and reasonable classification. It is not dissimilar to the classifications found proper in the cases of Kotch v. River Port Pilot Com’rs., supra, (here a class of Mississippi River Pilots was created); and Teachers’ Retirement System of Louisiana v. Vial, 317 So.2d 179 (La.1975), (here a class of Louisiana Public School Teachers was exempted from Louisiana forced heir-ship laws), wherein statutes creating similar classifications were contended to be unconstitutional as special laws.

Appellant’s attack on the constitutionality of LSA-R.S. 17:427 is without merit.

AFFIRMED.


author: MARVIN, Judge.

text:
    Arthur REDMON, Jr., Plaintiff-Appellee, v. Jacquetta L. REDMON, Defendant-Appellee.
    No. 14344.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    Barry G. Feazel, Shreveport, for defendant-appellant, Alisha Lashun Redmon.
    W. Stanley Lockard, Shreveport, for plaintiff-appellee, Arthur Redmon, Jr.
    Northwest Louisiana Legal Services, Inc. by Sheila Wharton, Shreveport, for defendant-appellee, Jacquetta L. Redmon.
    Kenneth C. Thomas, Shreveport, for defendant-appellee, Chad Kennedy.
    Before MARVIN, JASPER E. JONES, and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

A six-year — old appeals a judgment disavowing her paternity, contending that her peremptory exceptions to the action should have been sustained notwithstanding that blood tests conclusively support the judgment. We agree and reverse and render judgment dismissing her father’s demands. Pounds v. Schori, 377 So.2d 1195 (La.1979).

The Uniform Act on Blood Tests to Determine Paternity (LRS 9:396-398) was enacted in 1972. This child’s parents married June 16,1973, and lived together until October 1975. This child was born March 2, 1974, and the plaintiff father recognized her as his child even to the extent of seeking her legal custody in the divorce action which was instituted in 1979.

Because the paternity of another child, born to the mother some nine months before the marriage, arose as an issue in the divorce action when the mother sought child support, the plaintiff father invoked the blood test requirement of LRS 9:396 on the six-year-old as well. The plaintiff father then filed supplemental pleadings to disavow the six-year-old appellant, alleging that his wife “deceived” him about the paternity of the child and that for “reasons beyond his control” he was not able to file the disavowal suit until the results of the blood tests were revealed to him. The child filed the peremptory exceptions of prescription and no cause of action.

Plaintiff’s latter allegations (reasons beyond his control) derive from C.C. Art. 189, which was amended with the other articles on disavowal by Act 430 of 1976 to read:

“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.”

Prior to the 1976 amendment the pertinent articles read:

“Art. 185 The husband can not by alleging his natural impotence, disown the child; he can not disown it even for cause of adultery, unless its birth has been concealed from him, in which case he will be permitted to prove that he is not the father.”
“Art. 191 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 that 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.”

Whether the Paternity Blood Test Law, LRS 9:396, provides an additional ground for disavowal of a child is a question which has not been answered uniformly. See and compare Dugas v. Henson, 307 So.2d 650 (La.App.3d Cir. 1975) and Brugman v. Prejean, 288 So.2d 702 (La.App.3d Cir. 1974). The Supreme Court has answered, however, that the 1976 amendments to the disavowal articles are not to be given retrospective effect where the time for bringing an action to disavow under the former C.C. Art. 191 has tolled. Pounds v. Schori, supra. The six-months time limit in which to bring the action to disavow under C.C. 191 is a period of peremption (forfeiture) rather than of prescription. If the action is not brought within the time provided, the cause of action is extinguished or forfeited. See Succession of Saloy, 44 La.Ann. 433, 10 So. 872 (1892); Pounds, supra. See Comment by Shuey, “Legal Rights and the Passage of Time”, 41 La.L.R. 220 (1980).

Under the circumstances of this case, the peremptory exception of no cause of action should have been sustained. Pounds, supra. The judgment appealed is reversed and

IT IS ORDERED that the demands of plaintiff to disavow his daughter, born March 2, 1974, are hereby rejected at his cost.

REVERSED AND RENDERED.


author: HALL, Judge.

text:
    CITY OF MONROE, Plaintiff-Appellee, v. Robert A. EVANS et al., Defendants-Appellants.
    No. 14369.
    Court of Appeal of Louisiana, Second Circuit.

      Dec. 2, 1980.
    Joseph A. Cusimano, Jr., Ltd. by Harold W. Aswell, Farmerville, for defendants-appellants, Robert A. Evans and John Bolton.
    Charles D. Patten, III, Asst. City Atty., Monroe, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

Defendants, Evans and Bolton, appeal from a judgment in favor of the City of Monroe granting a preliminary injunction enjoining them from interfering with the City’s efforts to remove a tree obstructing the landing path of Runway 13 of the Monroe Regional Airport. In earlier proceedings brought by the City against Evans, a consent or compromise judgment recognized the City as the owner of the tree. This appeal is a sequel to a previous appeal in which this court set aside a contempt judgment against Evans because it was found that his interference with removal of the tree did not amount to contempt because his actions did not violate a direct order of the court. See City of Monroe v. Evans, 385 So.2d 912 (La.App.2d Cir. 1980).

Following that decision, the City sought an injunction directly ordering defendants not to interfere with removal of the tree. After a hearing on a rule to show cause why a preliminary injunction should not be granted, judgment was rendered ordering the issuance of the preliminary injunction, from which judgment both defendants perfected a suspensive appeal.

On appeal, both defendants, represented by the same counsel, specify that the trial court erred (1) in not granting a continuance of the hearing on the preliminary injunction; and (2) in granting the injunction absent a showing of irreparable injury to the plaintiff.

We affirm as to defendant Evans and reverse as to defendant Bolton.

The petition for an injunction was filed June 13, 1980 and the rule to show cause was issued that date setting the hearing for June 18. Evans was not served until June 17. The record does not show that Bolton was ever served, although he or his attorneys received notice of the hearing late in the day on June 17.

At the hearing on June 18, Evans appeared in proper person and made no objection to proceeding to trial. Bolton was represented by counsel, who moved for a continuance because of the short notice and inadequate time to prepare for trial. The motion was overruled and the hearing proceeded as to both defendants.

LSA-C.C.P. Art. 3602 provides that a preliminary injunction shall not issue unless notice is given to the adverse party and an opportunity had for a hearing. The article mandatorily provides:

“An application for a preliminary injunction shall be assigned for hearing not less than two nor more than ten days after service of the notice.”

By failing to object to the hearing being held less than two days after service of the notice on him, Evans waived the delay provided in the article. There was and is no showing that he was prejudiced by the holding of the hearing on the scheduled date, particularly since he was entirely familiar with the facts and issues involved in this litigation which has been going on for many years.

As to the defendant Bolton, the trial court should have granted the continuance under the mandatory provisions of Article 3602. A hearing on an application for a preliminary injunction cannot be held less than two days after service of notice on the defendant, where the defendant objects or moves for a continuance. The judgment against Bolton based on the hearing held contrary to procedural law must be set aside.

The district court properly ordered the issuance of an injunction against defendant Evans. By the consent judgment previously rendered, the City was recognized as the owner of the tree and acquired the corresponding right to go upon the property and remove the tree. Upon a showing that defendant Evans had interfered with the City’s exercise of its rights under the judgment, the City was entitled to judgment restraining defendant from further interfering with the exercise of the City’s rights, there being no other adequate remedy at law.

For the reasons assigned, the judgment is affirmed as to defendant Evans. The judgment against the defendant Bolton is reversed and set aside. The action is remanded to the district court for such further proceedings as may be appropriate. Costs of the appeal are assessed to the defendant Evans.


text:
    SUCCESSION OF Francis Hale BAGWELL.
    No. 14350.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.

      James Sharp, Jr., Monroe, for petitioner-appellant, H. E. Martin.
    Law Offices of John S. C. Massey by David G. Haynes, West Monroe, for respondent-appellee, Herbert Bagwell.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

After rejection of his wife’s demand to probate an allegedly “lost” statutory will in which the husband and the wife were legatees, the husband then sued for probate of the alleged lost will and was met with a “Motion for Judicial Estoppel”.

This motion, filed on the grounds that the husband was aware of his wife’s suit to probate the will and should have joined in, was sustained and the husband’s demands were rejected and he appeals.

The sustaining of the motion (plea or exception) of judicial estoppel was clearly wrong. Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Welch v. Crown Zellerbach Corporation, 359 So.2d 154 (La.1978). None of the variations of the common law doctrine of res judicata may be engrafted upon our Civil Code authority, Arts. 2285-2287, 3556. See Welch, supra.

REVERSED at appellee’s cost and remanded.


text:
    M. G. RAGSDALE, Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE COMPANY and Temp Construction Company, Defendants-Appellees.
    No. 14351.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.

      Wm. Henry Sanders, Jena, for plaintiff-appellant.
    Kostelka, Swearingen & Street by C. Daniel Street, Monroe, for defendants-ap-pellees.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

The employee appeals a judgment dismissing his worker’s compensation action on an exception of prematurity. LRS 23:1314. We affirm.

This section effectively states that when the employee’s allegations-that he has not been paid compensation benefits and that the employer has refused to pay-are shown by the employer to be without reasonable cause or foundation in fact, the employee’s petition shall be dismissed. The purpose of these provisions is to give the employer a reasonable time after notice of the accident in which to investigate and commence compensation payments. See Malone-Johnson, “Worker’s Compensation”, 2d Ed., La. Civil Law Treatise, Vol. 13, § 383.

After this employee filed his original petition alleging a disabling accidental injury (by inhalation of “tractor smoke”), he filed a supplemental petition as a “separate and independent claim for ... total disability” arising out of an injury to his back. To the supplemental petition, the employer excepted under § 1314 and a hearing was held on the exception. The testimony showed that the employer was not made aware of the alleged accident and resulting back injury until suit was filed. Under these circumstances, the exception of prematurity was properly sustained.

The employee contends the dilatory exception of prematurity was waived by the employer when, after both claims had been filed by the employee, the employer made a “general appearance” under CCP 7 by taking depositions relative to the merits of the claims. We cannot agree. The employer is not objecting to the jurisdiction of the court, but to the prematurity of the employee’s action. See and compare Stelly v. Quick Manufacturing, Inc., 228 So.2d 548 (La.App. 3d Cir. 1969), where the taking of depositions as to the merits of a plaintiff’s claim, after the filing of declinatory exceptions relating to the jurisdiction, was held to be a general appearance. The exception of prematurity is a dilatory exception and does not contest jurisdiction.

At appellant’s cost, judgment is

AFFIRMED.


text:
    JIM McCARY, INC. d/b/a McCary Jewelers, Plaintiff-Appellee, v. Jessie PRICE, Defendant-Appellant.
    No. 14352.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.

      James R. Hatch, Homer, for plaintiff-ap-pellee.
    C. Sherburne Sentell, Jr., Minden, for defendant-appellant.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

The defendant, Jessie Price, appeals a default judgment rendered against him in these proceedings in favor of the plaintiff, Jim McCary, Inc. The suit was upon an open account, and defendant assigns as error that the judgment was rendered upon insufficient evidence. He contends that plaintiff failed to establish a prima facie case at trial on the confirmation of the default.

The petition alleges “That your petitioner sold and delivered to said defendant on an open account certain merchandise and services at prices totaling TWO THOUSAND SEVEN HUNDRED SEVENTY-EIGHT AND 20/100 ($2,778.20) DOLLARS, as shown by the sworn statement of account.” The only document attached to the petition was an affidavit by Jim McCary wherein affiant stated he was acquainted with the books of plaintiff and “That the account to which this affidavit is attached is true and correct to the best of his knowledge, information and belief, and that Jessie Price is justly indebted unto Jim McCary, Inc., d/b/a McCary’s Jewelers in the full and true sum of $2,778.20.” There was no statement of account attached to the affidavit.

Minutes of the proceedings wherein the default judgment was rendered reflect the following:

“May it please the Court, Your Honor, in number 26,640, Jim McCary, Inc. doing business as McCary Jewelers versus Jessie Price, I’d like to take a confirmation now on open account. I’d like to offer and introduce into evidence the entire record in this matter, to include the petition, affidavit of correctness, the sheriff’s return showing personal service on February 7, 1980, on the defendant, Jessie Price, the minutes of this Honorable Court showing a preliminary default having been entered on March fourth of this year and not having been set aside by answer or otherwise, two clear legal days having passed. Your Honor, I would ask for judgment as prayed for.
THE COURT: So ordered.” Id. tr. 12.

The law requires that a judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case:

LSA-C.C.P. art. 1702: “A judgment of default must be confirmed by proof of the demand sufficient to establish a pri-ma facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
When the sum due is on an open account, promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.”

A prima facie case is established only when the evidence proves the essential allegations of the petition to the same extent required as if those allegations had been specifically denied. Bonfouca Inv. Corp. v. Eubanks, 347 So.2d 1277 (La.App. 1st Cir. 1977); Premier Brands, Inc. v. Martiny, 377 So.2d 864 (La.App. 4th Cir. 1979).

In order to establish a prima facie case on an open account by affidavit, it must contain an itemized statement of account. The declaration in the affidavit of nothing more than the correctness of the unpaid balance of the account does not establish prima facie proof of the claim. American District Telegraph Company v. Rault, 378 So.2d 194 (La.App. 4th Cir. 1979); Buddy Patterson Gateway Gulf Service v. Howell, 392 So.2d 140 (La.App. 1st Cir. 1980); Carte Blanche Plumbing & Heating Repair Service, Inc. v. Haeler, 337 So.2d 654 (La.App. 4th Cir. 1976); Sobel v. R & D Distributors, Inc., 131 So.2d 570 (La.App. 4th Cir. 1961).

Plaintiff’s petition contains no reference to the items of merchandise sold or the nature of the services rendered or dates of such sales and of the dates services were rendered, or the amount charged for them, other than reference to one item of merchandise in the last paragraph of the petition which reads:

“In the alternative, petitioner would accept as full satisfaction in this suit the return of the merchandise, i. e., the one ladies diamond ring set with diamonds sold to defendant.” Id. p. 4.

Plaintiff contends that this allegation should be accepted in lieu of an itemized statement of account, and that said allegation establishes the account sued upon was based upon one single sale of the diamond ring set for the amount sued upon. We note first that the affidavit attached to the petition refers to a statement of account “to which the affidavit is attached” and does not relate to the petition, and for this reason alone the quoted allegation of the petition could not serve in lieu of a sworn itemized statement of account. An even more significant reason why the allegation cannot serve in lieu of a sworn statement of account is because it does not set forth that the only merchandise sold was one set of diamond rings, nor does it purport to set forth what services were rendered or the charges made for such services, and according to the earlier quoted allegation of plaintiff’s petition charges for services rendered were included within the amount which defendant was alleged to have owed.

For the various reasons set forth, plaintiff’s contentions that the quoted paragraph may serve in lieu of the itemized statement of account is without merit.

Plaintiff did not establish prima facie proof of the claim sued upon, and for this reason the judgment appealed from must be reversed and set aside.

Defendant filed in this Court a peremptory exception of prescription of three years contending the open account sued upon had prescribed as provided for in LSA-C.C. art. 3538. The peremptory exception of prescription can only be considered by this Court “if proof of the grounds of the exception appears of record.” LSA-C.C.P. art. 2163.

There is a total absence from the record of the facts necessary to establish the grounds for and the validity of the exception of prescription, and for this reason we deny it.

Defendant also filed in this Court an exception of no cause of action. The rules relating to the consideration of this exception of no cause of action were recently set forth by us in Ely v. Northumberland Gen. Ins. Co., 378 So.2d 1024 (La.App. 2d Cir. 1979); at p. 1026:

“The purpose of an exception of no cause of action is to check the legal adequacy of plaintiff’s petition, accepting as true all well-pleaded allegations of fact. Southern Hardware Co., Ltd. v. Honeywell Information Systems, Inc., 373 So.2d 738 (La.App. 2d Cir. 1979). Every legitimate interpretation in favor of sufficiency must be given the petition in order to allow the plaintiff his day in court. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975).
Liberal rules of pleading prevail in La., and each pleading should be interpreted so as to do material justice. The court should maintain a petition so as to afford the plaintiff a chance to present his evidence. LSA-C.C.P. art. 865; Haskins v. Clary, 346 So.2d 193 (La.1977). Any doubt as to the sufficiency of the petition should be resolved in favor of the plaintiff. Godwin v. East Baton Rouge Parish School Board, 372 So.2d 1060 (La.App. 1st Cir. 1979).

In Haskins, supra, the court stated:

‘The general rule applicable to trial of such exceptions is that an exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based; that is, unless plaintiff has no cause of action under any evidence admissible under the pleadings. (citations omitted). Because a petition is subject to more than one interpretation or is vague, does not mean that it is fatally deficient. A vague, uncertain, or indefinite petition is subject to an exception of vagueness, but not to an exception of no cause of action.’ (citations omitted). Id. at 195.”

The evaluation of plaintiff’s petition establishes that though it is vague and inarticulately drawn, it still states a cause of action within the criteria set forth in the authorities cited above, and for that reason it is not subject to the exception of no cause of action.

For the reasons set forth the judgment appealed from is REVERSED and set aside and the case is REMANDED for further proceedings in accordance with law. The costs incurred in this appeal are assessed against the appellee, Jim McCary, Inc., d/b/a McCary Jewelers.

      . LSA C.C.P. art. 2163: “The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
      If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.”


author: PRICE, Judge.

text:
    C. P. WALKER, Plaintiff-Appellee, v. WESTERN-SOUTHERN LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 14353.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    Blanchard, Walker, O’Quin & Roberts by Jerald L. Perlman, Shreveport, for defendant-appellant.
    Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for plaintiff-appel-lee.

      Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   PRICE, Judge.

Plaintiff, C. P. Walker, filed this suit seeking to obtain a declaration of his rights under a disability policy (referred to as security plan) issued by his former employer, Western-Southern Life Insurance Company. Plaintiff also seeks judgment for the disability benefits which have allegedly accrued, penalties and attorney fees for failure to pay those benefits, and damages for mental anguish.

In the alternative plaintiff contends his employment was illegally terminated by defendant and he seeks past wages, penalties, and attorney fees.

The trial court rendered judgment declaring plaintiff entitled to full disability rights under the security plan of defendant but rejected the remaining demands of plaintiff. Defendant appealed and plaintiff has answered the appeal seeking recovery of the demands rejected by the trial court. We affirm for the reasons assigned.

The factual background and issues presented are accurately and concisely stated by the trial judge in his written reasons as follows:

The Plaintiff in this case, Mr. C. P. Walker, is an insurance agent and salesman by profession. In 1950, he began work for a company known as Unity Life Insurance Company. He worked as an insurance agent with Unity Life Insurance Company from 1950 until 1970. In 1970, Western-Southern Life Insurance Company took over the operations of Unity Life Insurance Company.
One of the benefits provided to its employees by Western-Southern Life Insurance Company was its “Western-Southern Life Insurance Company Security Plan” which provided for a disability plan, medical insurance, hospitalization insurance, life insurance, and retirement. The issue presented in this case is the applicability of the Western-Southern Life Insurance Company’s security plan to Plaintiff’s total disability which began on May 16,1975 and which has continued, uninterruptedly, until the present time.
A determination as to whether Plaintiff is entitled to coverage under the security plan involves an interpretation of the provisions of Section 1.05 and Section 5.03 as they relate to the terms “continuous service” and “uninterrupted employment.”
It is necessary to determine what is meant by these phrases inasmuch as the provisions of the security plan relating to permanent disability do not become applicable to an employee until such time as he has been with the company for a period of five years.
In this case, Western-Southern took over operations of Unity Life Insurance Company on September 1, 1970. Plaintiff became disabled on May 16, 1975, a period of four years and approximately 8V2 months thereafter. Not having achieved a period of five years under the control of Western-Southern Life Insurance Company, Plaintiff would not be entitled to benefits under the security plan unless his time of previous employment with Unity Life Insurance Company would be counted as “continuous service” and “uninterrupted employment” with Western-Southern.

The provisions of the security plan referred to above read as follows:

Section 1.05 Continuous Service
“Continuous service” is the last period of uninterrupted employment with Western-Southern, including any periods during which the member is entitled to benefits under the Income Replacement Benefit (Part V), commencing with the date of such employment and ending with the date of termination of such employment stated in terms of years and days.
Section 5.03 Permanent Disability Benefits
If a member has completed at least five years of continuous service prior to the commencement of a period of total disability for which the member is entitled to Temporary Disability Benefits and such total disability continues beyond the maximum period for which Temporary Disability Benefits are payable, Western-Southern will pay Permanent Disability Benefits for each month (if less than a month, Vtoth for each day) throughout which such total disability continues in an amount equal to the Monthly Benefit, but in no event less than $100 a month nor more than two-thirds of the member’s monthly rate of earnings immediately prior to the date on which the member becomes totally disabled. The Monthly Benefit is equal to Vi2th of the Annual Retirement Annuity granted for service prior to January 1, 1937, plus '/12th of 2% of total earnings for service on and after January 1, 1937, or, if greater to the monthly early retirement annuity (exclusive of any temporary annuity) to which the member would otherwise be eligible.

The primary assignment of error by defendant on this appeal is that the trial court should not have considered parol evidence in determining the effect of the above provisions on plaintiffs eligibility for permanent disability benefits.

The trial court in permitting parol evidence reasoned that “the terms in question are unambiguous under normal circumstances where a new employee begins work with Western-Southern without reference to prior work history in an unrelated company or industry . . . however . . . there is some ambiguity in the terms ‘continuous service’ and ‘uninterrupted employment’ in the context of this situation where Western-Southern acquired another company. ...”

The jurisprudence in Louisiana is well settled to the effect that parol evidence may be used to show fraud, mistake, illegality, want or failure of consideration, to explain an ambiguity if such explanation is not inconsistent with the written terms, or to reveal that the writing is only a part of an entire oral contract existing between the parties. Parol evidence, of course, is inadmissible to vary, alter or add to the terms of the written contract. Dorvin-Huddleston Developments v. United Services, 207 So.2d 225, 228 (La.App. 4th Cir. 1968).

We are of the opinion the trial court was correct in allowing parol evidence under the circumstances as the record shows the “security plan” formed only a part of the overall employment package presented to plaintiff and others similarly situated at the time defendant took control of Unity. Many of the conditions of future employment with Western-Southern were explained orally to Unity employees by defendant’s officers. These explanations were given at a series of meetings held in Alexandria for the purpose of announcing the plans of Western-Southern to purchase Unity. Therefore all representations made to plaintiff, written or oral, should be considered in interpreting the terms of the security plan relating to plaintiff’s eligibility for benefits.

Defendant next contends that if parol evidence is found to be properly admissible, the trial court erred in finding the evidence presented by plaintiff sufficient to substantiate his claims.

Plaintiff contends certain officials of the defendant who were in charge of the transition of Unity into Western-Southern represented to Unity employees that their total time of prior employment with Unity would be considered as time with Western-Southern for all purposes connected with employment benefits or service awards.

The testimony of what was said or what occurred at these meetings is conflicting. Defendant’s witnesses took the position that there was no discussion of the security plan or other employee benefits at the first meeting which most of plaintiff’s witnesses attended. The trial court found the testimony of plaintiff’s witnesses as to what transpired at the meetings more believable as “it would be strange indeed to find that at an organizational meeting when a whole company had been taken over by another and all its employees were going to be subjected to different procedures and management, that those same employees would not have questioned, at every opportunity, the representatives of their new company as to what their personal fate would be under the new regime.”

There is sufficient evidence to support this finding of fact by the trial court.

Defendant’s witnesses contend that prior service with Unity was not represented as counting for purposes of eligibility in the security plan. However, these same witnesses admit that Unity employees were told their prior time would count for service awards, bonuses, and retirement purposes. We think it is significant that retirement benefits are provided in Section 8 of the security plan for those employees who have qualified for inclusion in the plan. If prior service with Unity was intended to be applicable for one part of the security plan, it is reasonable to conclude that it is applicable to the remaining parts.

We find no manifest error in the trial court’s conclusion that plaintiff is entitled to all prior service with Unity in determining eligibility and computing benefits under the security plan of Western-Southern.

It is conceded by plaintiff that a finding of eligibility for disability benefits precludes his alternative claim for back wages.

Remaining for our consideration is plaintiff’s claim for penalties and reasonable attorney fees under La.R.S. 22:657, and his claim for damages for mental anguish.

We do not find defendant should be assessed penalties and attorney fees in this instance as there clearly were just and reasonable grounds for denying coverage. The policy provisions at issue were ambiguous only because of the acquisition of Unity by defendant and the unforeseen application of the security plan to former Unity employees. Under these circumstances it was reasonable for defendant to seek a judicial interpretation of the policy.

We lastly find the trial court was correct in rejecting plaintiff’s demand for nonpecuniary damages for mental anguish. The circumstances under which La.C.C. Art. 1934 allows such damages are not present here. See Ostrowe v. Darensbourg, 377 So.2d 1201 (La.1979).

For the foregoing reasons the judgment is affirmed at appellant’s cost.