text:
    Ruby CARTER v. WOOLCO DEPARTMENT STORE and the Travelers Insurance Company.
    No. 10820.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1979.
    Rehearing Denied Feb. 20, 1980.
    Gerald P. Aurillo, Metairie, for plaintiff-appellant.
    Michael F. Grennan, Law Offices of James J. Morse, New Orleans, for defendants-appellees.
    Before BOUTALL and SCHOTT, JJ., and HOOD, J., assigned.
   SCHOTT, Judge.

Plaintiff filed this workmen’s compensation claim seeking benefits for total disability commencing on the date of the accident on September 2, 1977. The trial court awarded her benefits up to July 19, 1978, and she has appealed, seeking an extension of benefits to July 19, 1979, and expenses she incurred for treatments administered by a chiropractor beginning on July 21, 1978.

In this court plaintiff has specified as the only error the refusal of the trial court to permit the chiropractor to testify that the cause of plaintiff’s condition as he found it was the accident in September, 1977. However, we consider the real issue to be whether the trial judge erred in his apparent rejection of the chiropractor’s testimony irrespective of the limited effect of his ruling that the chiropractor’s testimony as to causation was inadmissible.

Plaintiff was employed as a waitress or server in a cafeteria at the time of her accident which occurred when she slipped and fell causing an immediate onset of pain in her neck and back. A few days after the accident she went to a chiropractor, L. J. Bourgeois, Jr., but he did not treat her. On September 15 she went to the emergency room of Ochsner Clinic reporting a history of the accident and complaining of neck and back pain which persisted while she continued to work. The initial diagnosis was mild cervical and lumbar strain with recommendation of bed rest for one week, heat applications, medication, and return to the orthopedic clinic if the problem persisted. On September 26 she did return and was examined by Dr. A. W. Dunn, an orthopedist, who found no objective symptoms, no abnormalities in the X-ray photographs taken on the occasion of her visit to the emergency room, no cause for her complaints and no reason why she should not return to work.

On September 30 plaintiff was seen by Dr. Julius L. Levy, a general surgeon, on referral by her attorney. She was complaining of cervical and lumbosacral pain. He found spasm in both areas and diagnosed soft tissue injuries for which he prescribed a course of diathermy treatments. These were administered from October 4, 1977, until January 4, 1978, at intervals of every few days. Spasm was found in the neck until December 22 and in the back until she was discharged. Dr. Levy felt that she should return to her pre-injury state within two or four weeks thereafter.

On February 1, .1978, plaintiff was seen by Dr. Jack Wickstrom, an orthopedist, again on referral by her attorney. She still complained of pain in her neck and back. He found muscle spasm on the right side of her neck but none in the back, explaining that her obesity prevented him from determining whether there was any spasm there or not. He administered a straight leg raising test which produced an objective finding to support her claim of pain in her leg radiating from the back. He recommended that she lose a hundred pounds of weight as a cure for the chronic symptoms about which she complained. In his opinion, there was no evidence of marked physical disability to match-her subjective complaints. He felt that as of February had she been put on a rehabilitation program, lost weight and got her muscles back in shape she could have gone back to work shortly thereafter. He again saw plaintiff on May 1, June 1, and July 19. On May 1 she was still complaining of pain and seemed to have tenderness in the lumbar region of her spine, prompting Dr. Wickstrom to start her on medication. She told him her neck felt better at that point. By June 1 she had the same complaints. On neither one of these visits was he able to palpate any muscle spasm but he explained that the.fat prevented a manifestation of spasm even if it had been present. Finally, he last saw her on July 19 when she was still complaining of back pain but she had a full range of motion with complaints at extremes of motion in her back. He did not feel any spasm. Based on his last examination of plaintiff on July 19 it was his opinion that if she would lose weight and undertake the exercise program he had discussed previously she would be able to return to work. Conversely, without losing the weight or undertaking the program he doubted that she could return to work. He classified her condition as a moderate myositis inflammation of the muscles.

On July 21, 1978, plaintiff was examined by Henry J. Fitch, a chiropractor. He testified as follows: She was in pain and apparent distress when she entered his office and had a slight limp. There was muscle spasm on the right side of her neck and she had a left shoulder tilt, left hip lower than the right, and a right short leg. On the basis of his examination and X-ray photographs which he took he diagnosed a chronical cervical thoracic subluxation, chronic sacroiliac and lumbar strain with radiculitis of the right leg. He defined the subluxation as a condition in the vertebra whereby it has lost its normal position in relationship to the one above and below, and radiculitis as a radiating type pain along the course of the nerve. He put her on a course of treatment twice a week consisting of “chiropractic adjustments” and therapy consisting of “pulse galvanism” which he defined as electrical current for pain. He also prescribed vitamins. His treatments were helping plaintiff and she could probably return to work around July 19, 1979, (four months after the trial).

All of this testimony by Dr. Fitch was received in evidence by the trial court over defendants’ objections; his opinion that plaintiff’s condition was caused by the accident was excluded but is in the record under a proffer. The theory of plaintiff in this court is that the trial judge’s refusal to permit the chiropractor to testify that plaintiff’s condition as he found and treated it was caused by the accident was reversible error.

For plaintiff’s theory to be valid we must assume that the trial judge believed the chiropractor and gave weight to his testimony and then declined to connect her condition to the accident. But this would make no sense because if she was still disabled when she last saw Dr. Wickstrom and first saw Dr. Fitch her accident was necessarily the cause of her continuing problems. From our review of the record, it appears that the trial judge, who gave no reasons for his judgment, rejected all of Fitch’s testimony because of the many substantial inconsistencies between his supposed findings on July 21 and those of the orthopedist, Dr. Wickstrom, just two days before, as well as the findings of the other medical doctors who testified.

Dr. Fitch found abnormalities in the X-rays whereas the medical doctors found none in the ones they reviewed. Dr. Fitch admitted that a subluxation revealed by a later X-ray and not on the previous X-rays might indicate some intervening cause for the subluxation. Curiously, Fitch testified that his X-rays showed spasm in the lower back and said that he noted this spasm when the X-rays were being taken. Dr. Wickstrom emphatically testified he could never palpate spasm in plaintiff’s lower back because of her obesity. Fitch was not concerned about plaintiff’s weight problem initially whereas Wickstrom was preoccupied with this problem each time he saw plaintiff. According to Wickstrom, the only time he had ever palpated muscle spasm in the plaintiff was on the right side of her neck in February but when he saw her in May she said her neck felt better. Yet, Fitch diagnosed a cervical strain. Wickstrom’s testimony that he was unable to palpate any muscle spasm in the plaintiff on July 19 stood in sharp contrast with Fitch’s testimony that he found spasm in plaintiff just two days later. Fitch testified that plaintiff had a limp, but Wick-strom said she did not limp but simply had the abnormal gait of an obese person.

It was plaintiff’s burden to prove her case. She rested her case for disability beyond July 19, 1978, on the testimony of Dr. Fitch and the trial judge apparently disbelieved that testimony. In this court it is plaintiff’s burden to show that this action on the part of the trial court was manifestly erroneous and because we are unable to reach this conclusion we affirm the judgment.

AFFIRMED.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Dorothy Jean VAUGHN, Individually and as Natural Tutrix for the Minor Children, Charles Anthony Vaughn, and Bryan Keith Vaughn v. GALLO WINE COMPANY OF LOUISIANA, INC., H. L. Reese a/k/a Herman Reese Bates, and Underwriters Insurance Co.
    No. 10994.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1979.

      Robert L. Barrios, Law Offices of Michael J. Samanie, Houma, for plaintiff-appellant.
    Charles W. Schmidt, III, Christovich & Kearney, New Orleans, for defendants-ap-pellees.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of her action for the wrongful death of Charles Vaughn who died after being hit on the head with a fiberglass night stick by defendant Herman Bates. The issue is whether the trial court erred in concluding that Bates did not use excessive force to defend himself against Vaughn under the circumstances of the case.

Bates reported for work at Gallo Wine Company at 2 AM on November 21, 1976, where he was to be the supervisor of two warehouse employees, Charles Coleman and Ernest Bailey. Shortly after Bates’s arrival Charles Vaughn entered the premises and told Bates that he had come to “whip C. D.’s ass,” referring to Coleman. While Bates was trying to reason with Vaughn, Coleman arrived on the premises and Vaughn immediately began to threaten Coleman. Despite Bates’s efforts to discourage Vaughn from his aggressive conduct, he continued, and, at some point, Bailey, who was standing by, intervened. Vaughn then threatened Bailey who ran back into the warehouse area of the premises with Vaughn in pursuit, whereupon Bates went outside and got a night stick from his automobile. When he returned, Bates asked Vaughn to leave the premises but he refused and became abusive to Bates, after warning Vaughn that he would hit him with the night stick unless he left the premises voluntarily. Vaughn still refused, so Bates took him by the arm and led him outside of the building and on toward the gate of the premises. Because Vaughn attempted to hit Bates, he struck Vaughn over the head with the night stick. Although Vaughn appeared to be all right, he collapsed near the premises and died sometime thereafter.

Vaughn had formerly worked for Gallo under Bates who regarded him as a good worker and a friend. Thus, Bates thought he could reason with Vaughn and persuade him to leave the premises peacefully. But Vaughn continued to be angry and to act irrationally. He not only threatened physical harm against Coleman and Bailey but he also attacked them. Bates had every right to evict Vaughn from the premises and was doing so without any force at all until Vaughn tried to hit him. Vaughn was taller and more powerfully built than was Bates.

There is no dispute with the trial judge’s findings that; 1) Vaughn was the aggressor who repeatedly refused to leave the premises and persisted in disrupting the work; and 2) Bates was responsible for the work being done and acted properly in trying to evict Vaughn. But appellant takes issue with the trial judge’s conclusion that when Vaughn struck at him Bates “had every right to defend himself with the night stick, and did not use it with excessive force, under the circumstances at the time.”

Plaintiff contends that this conclusion was erroneous based on LeBrane v. Lewis, 292 So.2d 216 (La.1974), Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969), Andrepont v. Naquin, 345 So.2d 1216 (La.App. 1st Cir. 1977), Watts v. Aetna Casualty & Surety Company, 309 So.2d 402 (La.App. 2nd Cir. 1975), Foster v. Barker, 306 So.2d 910 (La. App. 1st Cir. 1974), Willis v. Willis, 287 So.2d 642 (La.App. 3rd Cir. 1973), and Porche v. Fernandez, 286 So.2d 418 (La. App. 4th Cir. 1973).

Since the question of whether Bates’s act was reasonable under the circumstances is essentially a question of fact the trial judge’s conclusion will not be disturbed unless clearly wrong. Thus, it is significant that in each of the cited cases plaintiff had prevailed in the trial court and the reviewing court affirmed.

In any event, each cited case can be distinguished. In Foster and Willis an unarmed plaintiff was shot by defendant. In LeBrane the unarmed plaintiff was stabbed by defendant. In Tripoli plaintiff was awarded damages for the injuries he sustained when he was already down on the ground with an injured leg and defendant struck him. In Andrepont plaintiff and defendant were voluntarily engaged in a fist fight when defendant resorted to the use of a baseball bat to strike plaintiff. Porche and Watts both involved fist fights but in each case the beating administered by defendant went far beyond the limits of reasonableness.

In the instant case the blow with the night stick was neither intended nor reasonably expected by Bates to produce any result other than defending himself and preventing Vaughn from attacking him further until he could get Vaughn out of the premises. We agree with the trial court that Bates’s conduct was reasonable and the amount of force used was not excessive under all the circumstances.

AFFIRMED.


author: SAMUEL, Judge.

text:
    Mrs. Anna K. GELE et al. v. Earl MARKEY and Hanover Insurance Company.
    No. 9786.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 3, 1979.

      O’Dowd & O’Dowd, New Orleans, George O’Dowd, for plaintiffs-appellees.
    Bienvenu, Foster, Ryan & O’Bannon, New Orleans, John W. Waters, Jr. and Robert N. Ryan, New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiffs filed this suit against Earl K. Markey and his liability insurer seeking damages resulting from the collapse of the ceiling of the premises rented to them by Markey at 2455 Aubrey Street in New Orleans. The premises were used as a grocery store, and the ceiling fell in the evening while the store was closed and unoccupied, damaging the store’s contents. Plaintiffs sought an award for property damage, lost profit, incidental expenses, and mental anguish resulting from the ceiling’s collapse. The defendants answered, denying liability.

After a trial on the merits, judgment was rendered in favor of plaintiffs in the total amount of $10,700.55. Defendants have appealed.

Appellants first contend the trial court committed error by making any award to plaintiffs because the latter failed to prove by a preponderance of the evidence that the collapse of the ceiling was caused by a vice or defect or any fault on the part of the individual defendant.

Civil Code Article 2695 is one of the primary articles governing a lessor’s liability to his tenant for damages caused by vices and defects of the thing leased. It reads as follows:

“The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.” LSA-C.C. Art. 2695.

Appellants contend mere proof that the ceiling collapsed is not sufficient to establish the existence of a vice or defect therein. They argue plaintiffs did not furnish sufficient evidence to prove the existence of a vice in the premises. At the trial, plaintiffs introduced the testimony of witnesses describing the manner in which the ceiling fell, and also a portion of the ceiling and pictures of the scene showing the manner in which it collapsed. On the other hand, defendants introduced no evidence indicating the ceiling did not fall, that the pictures did not adequately describe the scene, or that no vice or defect existed in the premises.

The existence of a vice or defect within the meaning of Article 2695 is a question of fact for the trial court’s consideration. The trial judge obviously concluded plaintiffs’ evidence was sufficient to establish a defect or vice and that the same caused the damage in suit. We agree with that conclusion.

Appellants also contend the trial judge was incorrect in awarding damages for mental anguish. They argue that Article 2695, quoted above, establishes a contractual relation between landlord and tenant and that damages for mental anguish for breach of contract are not allowed in Louisiana unless the object of the contract is intellectual enjoyment. We agree with this argument.

In Meador v. Toyota of Jefferson, Inc. the Supreme Court concluded an automobile owner may not recover damages for aggravation, distress, and inconvenience from a repairman who has excessively and unnecessarily delayed completion of the repair of a vehicle because intellectual enjoyment was not a principal object of the contract and Article 1934(3) of the Louisiana Civil Code did not apply to such a situation.

Plaintiffs cite Nickens v. McGehee, and Nacol v. Wail, Incorporated, as authority for recovery of damages for mental anguish for damage to leased property. However, both of these cases are primarily based on McGee v. Yazoo & M. V. R. Co., which was not an action for damages in contract, but one for damages in connection with. the abatement of a nuisance. Plaintiff is entitled to recovery in such a case, but the McGee case is not authority for the results reached in Nickens and Nacol. Meador, effectively has overruled the pertinent results in Nickens and Nacol and we are required to follow that Supreme Court case.

The contract, involving only rental of a grocery establishment, obviously did not have intellectual enjoyment as its principal object. This being so, plaintiffs are not entitled to recover for mental anguish as a result of the collapse of the ceiling of the leased premises.

For the reasons assigned, the judgment appealed from is amended by reducing the total award from $10,700.55 to $3,200.55. As thus amended, and in all other respects, the judgment is affirmed. All costs in this court are to be paid by plaintiffs-appellees.

AMENDED AND AFFIRMED.

LEMMON, J., concurs without written reasons.

      . The award represents $3,200.55 to Mr. Gele for actual damages and, in addition, $3,000 for mental anguish suffered by him, and $4,500 to Mrs. Gele for mental anguish suffered by her.

      . See Civil Code Article 1934; Meador v. Toyota of Jefferson, Inc., La., 332 So.2d 433.

      . Supra, note 2.

      . La.App., 184 So.2d 271.

      . La.App., 219 So.2d 333.

      . 206 La. 121, 19 So.2d 21.


author: MARVIN, Judge.

text:
    Helen Waldemeier THURMON, Plaintiff-Respondent, v. Clyde Walter THURMON, Defendant-Appellant.
    No. 13958.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 30, 1979.

      Blanchard, Walker, O’Quin & Roberts by Wm. Timothy Allen, III, Shreveport, for defendant-appellant, Clyde Walter Thur-mon.
    Sockrider & Bolin by James E. Bolin, Jr., Shreveport, for plaintiff-respondent, Helen. Waldemeier Thurmon.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

We granted writs in this case to consider the husband’s contention that in light of a recent U.S. Supreme Court decision in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), Civil Code Article 160, the basis of his wife’s claim for permanent alimony, is unconstitutional. Since the issue has now become moot, the writs are recalled.

In July 1977, the wife obtained a judgment of separation from her husband which included an award in her favor of $1,250 per month alimony pendente lite. On April 27, 1979, the husband obtained a final divorce on the grounds that the parties had lived separate and apart without reconciliation for over one year after judgment of separation. Although this judgment of divorce was silent as to the wife’s rights to permanent alimony, she filed a separate rule to obtain alimony on May 11, 1979. In response to this rule, the husband filed an exception of no cause of action based on his allegation that Civil Code Article 160 was unconstitutional.

The trial court overruled this exception on May 29 and the husband immediately applied to this court for supervisory writs. Writs were granted on May 30,1979, and an order staying the proceedings as to permanent alimony was issued. On May 31, 1979, the wife was granted a suspensive appeal of the April 27 divorce judgment.

At the outset we note that Civil Code Article 160 has recently been amended by Act 72 of 1979 to provide that both the wife and the husband may obtain alimony after divorce. The effective date of this act was June 29, 1979. Furthermore, in Clausen v. Clausen, 375 So.2d 1315 (La.1979), a case decided by our Supreme Court after writs were granted in this case, the court held a husband’s entitlement to permanent alimony for any period after the effective date of Act 72 would be governed by that Act.

Since a suspensive appeal from the April 27 divorce judgment was obtained by the wife, that judgment did not become final and perpetuated her entitlement to receive alimony pendente lite beyond the effective date of the amended statute. Consequently, the wife’s entitlement to permanent alimony will be at issue only for periods governed by the new Act. We therefore find it unnecessary to determine whether Civil Code Article 160, as it existed prior to amendment, was unconstitutional as a violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

The writs of certiorari, prohibition, and mandamus issued May 30, 1979, are recalled, and the order staying the proceedings below is vacated.


author: REDMANN, Judge.

text:
    PLAQUEMINES MATERIALS, INC. v. Larry K. BESS.
    No. 9284.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 27, 1979.
    Rehearing Denied Feb. 20, 1980.

      Frank Klein, Belle Chasse, for plaintiff.
    Robert E. Lee, Gretna, for defendant.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

Rightly or wrongly expecting an under-$45,000 price for his house being built by plaintiff under an oral contract for “cost of [labor and] materials plus 15%,” defendant received a bill for about $63,000 when the house was about 98% complete. The resulting disagreement occasioned the house’s remaining vacant while 10% yearly interest on the construction loan continued to accrue. Defendant now appeals from a judgment for $70,178.66 (actually $1,000 more than the total of its components: $63,891.86 on contract, $813 for insurance and $4,473.80 interest) plus legal interest plus $12.72 a day conventional interest.

The principal issue on appeal is who should bear the interest. Two more years have passed, adding over $9,000 to the conventional interest, since the trial court judgment (some time having been lost through the dismissal and reinstatement of this appeal; see 364 So.2d 577).

A second issue is what is the cost for which plaintiff is entitled to reimbursement plus 15%. We note some apparent duplications of items in the supporting documents (e. g., insurance $294; Burmaster $191.58; at times it appears that both contractor and a subcontractor are paying the same worker). More important, we note that plaintiff hired subcontracting firms operated by plaintiff’s officers to do plumbing and electrical and certain other work. Those subcontracting firms charge a certain amount for labor but do not support the charge by payroll checks (although in some cases they state labor charges in 1976 of $12 an hour). One subcontractor charged 15% for overhead and then 15% for profit, a total charge of 32.25% upon alleged costs, and uppn that total of 132.25% of costs plaintiff then superimposed yet another 15%, making a total charge of 52.08% upon the cost. Thus for every $100 of labor and materials for that particular work, defendant is being charged $152.08 although “labor and material plus 15% would amount to only $115.

Accepting that in general contractors on simple “cost plus” may employ some subcontractors for part of the work and treat the subcontractors’ charges as costs, especially as to certain specialized work such as airconditioning, we reason that a contract for “cost of labor and materials plus 15%” does not allow the contractor to charge the owner 115% of the price for which he hires a corporation fully owned by himself to perform the contract, because that is not the bargain with the owner. The owner’s bargain was an extra 15% of cost to the contractor and the contractor cannot collect more than 15% by using a controlled corporation to charge himself overhead and profit in addition to labor and materials. In the matter before us, the corporate contractor’s officers were the owners of some of the subcontractor firms and we conclude that the owner is not liable for those particular subcontract prices plus 15%; rather, he is liable only for the cost of labor and materials plus 15% — a figure we are unable to determine in some cases because the subcontractor’s statement does not make it clear.

The bargain was unusual both in that it was for cost of labor and materials plus only 15% (although defendant was to pay construction loan interest) and in that it was oral. This unusualness is attributable to the circumstance that one of plaintiff’s principal shareholders was defendant’s employer (in another business).

The amount due under the parties’ bargain was not properly proved by plaintiff because of plaintiff’s use of subcontractor’s charges from plaintiff’s officers’ corporations and because of some apparent duplication in charges. Remand is necessary to show the cost of labor and material plus 15% on the work subcontracted to firms owned by plaintiff’s officers. Because remand is necessary we do not seek out and eliminate duplications; the parties may do so if they desire.

The more lamentable aspect of this case is that no one has enjoyed the use of the house although someone must pay interest for the use of the money borrowed to build the house. The substantial loss which has occurred by the house’s not being used is the fault of both the contractor and the owner. Ordinarily, once construction is completed, the use of the house is an equivalent for the interest on the loan the owner makes to pay for the house (or his equivalent. loss of interest or investment income if he pays with his own money). Thus, if the owner had been or should have been occupying the house it would be fair to charge him legal interest on the contract price, La.C.C.1935, or possibly contractual interest on the construction loan even after construction was completed. On the other hand, if the builder made use of the house unavailable, as by noncompletion or other conduct, the builder should bear all of the post-construction interest. Our view of the facts is that both plaintiff, by non-completion and non-delivery, and defendant, by failure to assert his paramount right to occupy his own land, contributed to the loss of the use of the house. We therefore apportion the interest paid against them equally, for the period from presentment of the $63,000 bill until the date of this opinion. The previous interest is defendant’s cost by agreement. Interest on the loan after the date of this opinion is to be borne by defendant (who will henceforth enjoy unhampered use of his house) until the trial court fixes the amount due as the price — which will thereafter bear legal interest, C.C.1935, from date of judgment until paid.

Set aside; remanded.

      . Curiously, this “daily interest rate paid by plaintiff on the [$45,640.24] note” is 8.5% rather than 10% per annum.

      . Defendant argues he should pay only 8.5% because he lost an 8.5% mortgage loan through plaintiffs prematurity in laying the slab (subordinating later mortgages to all building privileges, La.R.S. 9:4812). The circumstances are far from clear, and we conclude that defendant— the beneficiary of a very favorable construction contract — probably accepted, at least impliedly, the 10% rate on the bank loan to the contractor rather than work out the legal method (if the mortgagee would agree) to allow the 8.5% mortgage to be recorded with preference over subsequent construction notwithstanding the premature slab-laying.

      . Any problem in obtaining mortgage financing because of a building contract lien will not be solvable until judgment fixes the amount of the lien. Meanwhile, defendant must be allowed use of the house or he will owe no interest on loan or price.


author: REDMANN, Judge. PER CURIAM.

text:
    Thomas E. VANACOR v. John O. ST. AMANT, Sheriff, Parish of St. Charles.
    No. 10383.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 27, 1979.
    Rehearing Denied Feb. 20, 1980.

      Garland R. Rolling, Metairie, for plaintiff.
    Steven F. Griffith, Destrehan, for defendant.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal on the merits of his demand for wages, penalties and attorney fees. Comparing routine weekends and other offdays to earned vacation pay or other deferred compensation within the rule of Morse v. J. Ray McDermott & Co., Inc., La.1976, 344 So.2d 1353, plaintiff argues that he had earned five days off from his work as a sheriff’s deputy and that he did not forfeit them by terminating his employment a day before they began. We disagree that routine nonworking days for a monthly-salaried employee are paid holidays, but we nevertheless rule that an employer cannot deduct money from a salaried employee’s paycheck for routine nonworking days on which the employee did not work.

The evidence establishes that, had plaintiff gone to work Thanksgiving night (November 24) 1977, he would have had not five but four days off and then, had he worked November 30, he would have received his full month’s salary. He in fact worked 19 work shifts (19 days) in November, and he would have received the full month’s pay had he worked those last two days for a total of 21. Other payroll employees, who presumably got full pay, worked from 19 to 22 days, presumably depending on how their own schedules of workdays and offdays fell. The nature of the sheriff’s work does not allow all deputies to work the same days and hours, and evidently some months entail fewer working days for some deputies than for others, and presumably those who work more days some months work fewer days in other months.

The sheriff treated plaintiff’s polite but unjustifiable refusal to work Thanksgiving night as a resignation as of that time. That treatment seems to us unexceptionable, but if plaintiff prefers one could characterize the sheriff’s actions as a firing for cause. In either case it was plaintiff himself who removed himself from the payroll by declining to work one day before his four-day off period was to begin. But the sheriff’s payroll clerk erred in paying plaintiff only 24/30 of his monthly salary when he had worked 19 of his 21 workdays for that month.

A weekly-salaried employee who begins working on a Monday and works through Wednesday earns and is entitled to three fifths, and not only three sevenths, of his weekly salary. Similarly, one who begins on a Thursday and works through Monday (but not on Saturday or Sunday) is entitled only to three fifths and not five sevenths of a week’s wages. Weekly employees are paid a salary based on five workdays, and they are not paid for Saturdays and Sundays, which are days off from work.

By the same principle we conclude it was error to pay plaintiff in the proportion of the calendar days he had been on the payroll to days in the month, rather than in the proportion of the days he worked to working days in the month. Notwithstanding that a sheriff’s deputy may be subject to call even on offdays in an emergency and one could assign some small element of his pay to offdays, defendant did not do so. An employee must ordinarily be considered to earn his pay on the days he is assigned to work and not on offdays.

Plaintiff should have been paid not 24/30 of his salary for being on the payroll 24 of the 30 calendar days in the month, but 19/21 of the salary for working 19 of his scheduled 21 working days in the month. The difference is $82.76 of the regular pay plus $16.11 of supplemental pay, or a total of $98.87.

No penalties are due under La. R.S. 23:632 because defendant did promptly pay the undisputed portion of the wages as required by R.S. 23:631 B and therefore is not an “employer who fails or refuses to comply with the provisions of R.S. 23:631 . .” Attorney fees are due under § 632, however, because plaintiff’s is “a well-founded suit for any unpaid wages whatsoever . . . We fix attorney fees at $300 because that is all the record will support in this particular case.

Reversed; judgment for plaintiff for $98.67 with legal interest from November 27,1977 and all costs, and for $300 attorney fees.

ON APPLICATION FOR REHEARING

PER CURIAM.

Notwithstanding Foster v. Hampton, La.1977, 352 So.2d 197, and Foster v. Hampton, La.1980, 381 So.2d 789, ruling that the State is the employer of a deputy sheriff, the State has provided by law for deputy sheriffs to be paid their salaries by the respective sheriffs for whom they are deputies. It is the sheriff’s obligation to pay to the deputies that he appoints their salaries, and the sheriff is in that sense the “employer” who is obliged by La.R.S. 23:631 to pay those salaries promptly upon termination of employment and is subject to the penalty and attorney fee provisions of the statute for his breach of that obligation.

Rehearing refused.

      . Payroll records show others similarly scheduled as working the night of November 24-25, not working November 26, 27, 28 and 29, and working November 30. The records show the 18th blank, but those persons worked 2 hours of that day, from 10 p. m. to midnight, as part of their new work-shift of 10 p. m. to 6 a. m. The “five” days that plaintiff and others spoke of included the 18th (when plaintiff worked the last two hours of the day) for which plaintiff was in fact paid.

      . We recognize that in industry a worker might be paid double time or more to work on holidays such as Thanksgiving. But the payroll records do not support a finding that defendant sheriff counted Thanksgiving as, say, double time (in which case plaintiff would be owed only 19/22 of his salary): some deputies who worked 22 days also worked Thanksgiving, and therefore plaintiffs group’s working only 21 is not attributable to Thanksgiving being counted as double time.

      . Presumably by simple error defendant paid plaintiff only 23/30 of the $116.66 supplemental pay, or $89.44. Regular salary was $790, of which defendant had paid $632. 19/21 of regular salary is $714.76 and of supplemental pay (R.S. 33:2218.8) is $105.55.


author: REDMANN, Judge. SCHOTT, Judge, REDMANN, Judge,

text:
    G. A. HEFT d/b/a G. A. Heft & Co. et al. v. E. P. LaBRUYERE et al.
    No. 9369.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 30, 1979.
    Rehearing Denied Feb. 20, 1980.

      Ralph L. Kaskell, Jr., Deutsch, Kerrigan & Stiles, New Orleans, for plaintiffs.
    James S. Arceneaux, Metairie, for defendants.
    Before REDMANN, BOUTALL, SCHOTT, BEER and CHEHARDY, JJ.
   REDMANN, Judge.

Plaintiff engineer appeals from a judgment rejecting his demand for additional engineering fees. The questions are of interpretation of contracts.

Plaintiff was employed by two written agreements of October 23, 1964, to do the engineering for a new major street (Earhart boulevard extension) that Jefferson parish hoped to construct. Of the planned six segments of the street, three were and three were not constructed. The engineering agreements provided for fees fixed in percentages of estimated and actual construction costs (plus cost plus 110% for certain elements of the work).

The agreement also provided that the fee for revisions of plans would be cost plus 110%, and when revisions of 83% of the preliminary plans became necessary, defendant sought some other fee arrangement (or it would exercise its right to cancel all agreements). The final result was a letter agreement of May 24, 1972, the meaning of which is one of the principal issues.

The other, related issue is the effect of a provision for revising estimated construction costs, upon which fees are first based, “as more accurate cost information becomes available and corresponding adjustments in partial payments shall be made.”

We first dispose of the latter issue.

An engineer’s best estimate of a project’s construction cost might be significantly lower or higher than the final price agreed upon with a contractor, even in the absence of monetary inflation. If the engineer’s fee for preliminary plans is fixed at a percentage of estimated construction cost without final adjustment, the engineer is forced into a conflict of interest: the higher he estimates costs, the higher his fee; yet one who underestimates, to avoid serving himself rather than his client, deprives himself of a portion of a fair fee. The practice of adjusting fees to actual cost, after preliminarily fixing and paying them on estimated cost, is an equitable insurance that neither the engineer nor the client will be affected unfairly by an erroneous estimate.

But all that the adjustment to actual cost is designed to do is to correct the inevitable inexactness of even a precise estimate: it is not designed to increase the engineer’s already-paid fees because of inflation. And that is our appreciation of the trial judge’s resolution of this issue: plaintiff seeks more money for work paid for long ago on the basis of correct estimates of cost, not because those estimates have proven wrong and unfair to the engineer but because inflation continues to increase estimated costs of projects that are not being constructed. Certainly if a widespread recession reduced estimated costs, plaintiff would not owe a refund on the fees it was paid. The pay that plaintiff received, say, in 1968 was 1968 dollars, based on 1968 dollar cost estimates that were (insofar as shown) free from significant error, and the fact that 1976 estimates are higher in number of inflated 1976 dollars does not entitle the engineer paid in 1968 dollars to more money for his 1968 work.

Thus, irrespective of the May 1972 letter, on the project portions that were never constructed, plaintiff is not entitled to more money.

We second treat the issue of the meaning of the May 1972 letter, written by defendant to plaintiff. That letter’s basic purpose is clear: speaking of the parties’ “total disagreement relative to the fees” resulting from the necessity for revising 83% of the preliminary plans, it premised “we should definitely resolve our differences at this time, or terminate our agreement.” The letter then set forth new rules governing fees. Because the alternative was the exercise by defendant of the right to terminate all contracts, plaintiff did accede to the demands of that letter and it became the contract of the, parties.

The letter’s key provisions are:

(1) The Engineer has established the percentage of the preliminary plans which required revisions. The Parish will pay to him one and one quarter percent of the construction cost times the percentage referred to above, for the preliminary plan revisions.
(2) The Engineer and the Parish have agreed ori which portion of the fees paid for the original preliminary plans are to be allocated to the project now contemplated by the Highway Department.
(3) In arriving at the adjusted fee for the preliminary plans (the intention of the contract for this portion is one and one-quarter percent) the amounts paid under 1 and 2 above shall be added together. If the sum of 1 and 2 is less than one and one-quarter percent of the construction cost, the difference shall be paid to the engineer. If it is greater no adjustment will be made.

The dispute centers on the meaning of paragraph (2).

Plaintiff would fix the “portion of the fees paid for the original preliminary plans . allocated to the project” by mathematics: since 83% of the preliminary plans required revision (as “the Engineer has established,” according to paragraph (1), and defendant accepted), only 17% of the cost [of some part] of the osiginal preliminary plans should be allocated to the revised project.

Plaintiff’s argument is inconsistent with paragraph (3) and the then-known reality of inflation. Paragraph (3) expressly and essentially anticipates that the sum of payments under paragraphs (1) and (2) could exceed 1.25% of post-1972 construction costs. It is not reasonably possible for that to be anticipated, if paragraph (2) envisioned only 17% of 1.25% of 1966 cost estimates; estimates rose from $33,800,000 to $58,700,000 and' it would make no sense whatsoever to assume that 17% of a fee based on 1966 estimates plus 83% of a fee based on 1972 costs could total over 100% of a fee based on 1972 costs. If paragraph (2) meant 17% of the 1960s fees, then all of (1), (2) and (3) are pointless because in every case paragraph (3) would have to be invoked to increase the total fees to 1.25% of 1972 fees, and the net effect in every case would be a fee of 1.25% of 1972 construction cost. Thus paragraph (2), in referring to the “portion” which the parties “have agreed” to allocate, could not have intended the mathematical percentage difference that plaintiff argues.

Defendant’s position is much more plausible. Defendant argues that the portion which paragraph (2) recites “the Engineer and the Parish have agreed” is allocable was that set forth in an attachment to its earlier letter of August 1971 (in which plaintiff did not at the time concur). Defendant’s 1971 letter recited “We had previously agreed on which portion of the original preliminary fee would be allocated to the various projects in this program.” That allocation attributed a total of $247,918.07 to usable plans (and $180,398.06 to “abandoned plans”).

That 1971 letter may have been in error when it recited that plaintiff had agreed to the allocations on the attachment, but it is fairly obvious that that is the only “agreement” that either of the parties thought they had on allocation (because the agreement that 83% of the work had to be revised cannot, consistently with paragraph (3), be the allocation agreement). The May 1972 .letter, when written by defendant, could also have been in error in asserting in paragraph (2) that the parties “have agreed” on an allocation: but, when accepted by plaintiff, that letter itself constituted the agreement by plaintiff that the allocation of the 1971 letter would govern.

Affirmed.

SCHOTT, Judge,

dissenting.

Despite the preoccupation of the parties to this case with the question of whether original estimated costs or actual construction costs will form the basis for plaintiff’s fees the dollar difference between the judgment awarded plaintiff in the trial court for $8,900 and the amount plaintiff seeks on appeal, $208,900, is essentially explained in the majority opinion as the correct interpretation of paragraph (2) of the May 24, 1972, letter. Under the parish’s interpretation the parish would get credit for $248,000 while under plaintiff’s interpretation the credit would be for about 17% of this amount.

I dissent from the majority opinion because I do not believe the parties came to a meeting of the minds with respect to the May 24 letter and, therefore, failed to con-fect a contract. When they signed the letter each party thought paragraph (2) had the meaning which each one continues to espouse.

The parish had consistently taken the position that plaintiff’s fees would be based on the original estimate of the cost of the project. When it sent plaintiff the letter of May 24, 1972, it made a major concession to plaintiff in accepting then current cost estimates as the base but subject to the higher credit. Plaintiff never departed from his belief that the lesser credit was being given the parish because to do otherwise would result in its having done the revision for nothing.

Because no contract was made on May 24, 1972, and because the state of the record does not enable me to conclude exactly what was the contract between the parties and how much, if anything, is owed plaintiff, I would remand the case to the trial court for further evidence.

I respectfully dissent.

REDMANN, Judge,

concurring in denying rehearing.

The overpayment in principal that plaintiff has already received (though defendant did not appeal and we therefore cannot grant it relief, First Nat. Bank of Crowley v. Green Garden Proc. Co., La.1980, 371 So.2d 1294) offsets plaintiff’s claim for interest on a payment made after suit was filed.

      . The real dispute as to the May 1972 letter is related because it is not over payment for the 83% of work that had to be revised. For that 83% the letter provided for the full 1.25% fee. The dispute is over payment for the 17% that was done and paid for in the mid-1960s. Thus the two disputes are basically one. Plaintiff wants 1.25% of 100% of the inflated cost estimates for the 17% it did years ago. That position is hard to accept because it would have been so easy to state, and the language actually used (i. e., 1.25% multiplied by the varying percentages) is comparatively so complex. The ultimate question here too is: should plaintiff to be paid a gain for the salvaged part of his original preliminary plans, for which he was paid 1.25% of estimates as of the time he did those plans, merely because inflation raised costs as of the time plaintiff did a part-revision?

      . Actually plaintiff would not credit 17% of the entire cost of original preliminary plans, but only 17% of the amount defendant treats as for usable original plans.


author: LEMMON, Judge. BEER, Judge, GULOTTA, Judge,

text:
    Jules DUSANG v. HENRY C. BECK BUILDERS, INC. and Aetna Life and Casualty Insurance Company.
    No. 10489.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 6, 1979.
    Rehearing Denied Feb. 20, 1980.

      Singerman, Cosentino, Broussard, Toups & Troyer, Joseph M. Singerman, New Orleans, for plaintiff-appellee.
    Johnston & Duplass, Lawrence J. Du-plass, New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON, GULOTTA, BEER and CHEHARDY, JJ.
   LEMMON, Judge.

Plaintiff’s corporate employer and its workmen’s compensation insurer have appealed from a judgment awarding plaintiff compensation benefits based on total and permanent disability. The principal issues are (1) whether plaintiff in fact has suffered substantial pain while working regularly in the same or similar type of employment since the compensable accident and (2) whether an employee who continues to work in the same or similar type of employment, but does so in substantial pain, is totally disabled within the contemplation of R.S. 23:1221, as amended in 1975.

I

In September, 1976 plaintiff, a 39 year-old iron worker and welder, injured his wrist and shoulder in a fall on the job. He continued to work daily through January, 1977, when his employment was terminated as part of a general reduction of the employer’s work force. After a brief period of unemployment, plaintiff obtained employment as an electrician welder (similar but perhaps less strenuous work) and continued to work regularly thereafter. At the time of the May, 1978 trial, he had not missed any work (except for the brief period of unemployment), had never been hospitalized or undergone surgery, had not sought medical attention or taken any medication in about a year, and was earning higher wages than at the time of the accident.

On the day of the accident plaintiff was referred to an industrial physician, who diagnosed sprains of the shoulder and wrist. When plaintiff’s complaints persisted after several weeks of treatment (during which time he continued to work regularly), he was referred to Dr. Alldredge, an orthopedic surgeon.

Dr. Alldredge found a normal range of shoulder and wrist motion, despite tenderness in both areas. The doctor administered cortisone injections, and plaintiff improved steadily through his last visit on November 8, 1976, at which time he was “greatly improved”.

Dr. Alldredge explained that the diagnosed shoulder condition of biceps tendonitis is irritation of the tendon, which is encased in a sleeve of ligaments and tissues in the shoulder and upper arm. He opined that pain from this type of tendonitis generally resolves in two to three months, and that the patient “nearly always” achieves complete recovery without residual disability. He added that rarely is biceps tendonitis curable only by surgery, but admitted that in these rare instances the patient would continue to experience pain.

Plaintiff did not seek further medical attention until February, 1977, when he consulted Dr. Adatto, an orthopedic surgeon, who diagnosed biceps tendonitis of the shoulder and reactive synovitis of the wrist. The doctor prescribed medication, and when plaintiff’s complaints of shoulder pain persisted, he recommended surgical rerouting of the biceps tendon. Plaintiff declined, expressing fear that he might have less use of the arm after surgery.

At trial Dr. Adatto stated that biceps tendonitis produces pain, particularly in certain uses such as lifting, extending, rotating or other activities where the tendon is stretched or is moved from point to point. However, he never spoke of plaintiff’s condition in terms of substantial or disabling pain, but simply stated that the degree of pain is subjective and depends on the particular individual’s ability to tolerate pain.

On the basis that the tendonitis is likely to be a chronic problem the doctor assigned a disability of the shoulder of less than five per cent, with no limitation of function “as long as he is able to work”.

II

On this record the trial court could only have found that plaintiff was totally disabled because he was working in substantial pain in order to earn a living. Such a factual finding is at best minimally supported by the record. The medical evidence arguably concedes that chronic pain can exist from biceps tendonitis, and considerable lay evidence (apparently accepted by the trial court) established plaintiff had consistently complained of pain since the accident and had requested assistance in chores he had previously handled by himself. Despite the lack of medical testimony that the pain was substantial or disabling, we accept the factual finding that plaintiff did endure substantial pain in continuing employment, and we proceed to consider the legal issue of whether the overall evidence supports a finding of total disability.

There have been few judicial decisions since the 1975 amendment which discussed the role of substantial pain in the determination of the extent of disability. See Johnson, Work of the Louisiana Appellate Courts for the 1977-78 Term — Workman’s Compensation, 39 La.L.Rev. 881, 883 (1979). Prior to the 1975 amendment an employee was deemed totally disabled if he was physically unable to perform work of the same or similar character to that which he was accustomed to performing at the time of his injury [Knispel v. Gulf States Util. Co., 174 La. 401, 141 So. 9 (1932)], or if he was unable to do so without enduring substantial pain [Brannon v. Zurich Gen. Accident & Liab. Ins. Co., 224 La. 161, 69 So.2d 1 (1953)]. On the latter issue the courts have reasoned that the law does not require an employee, in order to make a living, to work in significant pain that would disable others who are in a better economic position. The evident logic is that the employee who works in substantial pain because of economic necessity could collect compensation by refraining from work and should not be penalized because he works under circumstances that most would not.

In apparent response to numerous complaints of grossly inadequate benefits to totally disabled employees and of abusive awards of benefits to employees not actually disabled from earning wages, the legislature adopted the 1975 amendment which redefined total disability and partial disability and substantially increased benefits for total disability. The apparent purpose was to treat as partially disabled many of the type of claimants who would previously have been treated as totally disabled, although actually earning significant wages, and the substantial enhancement of benefits payable to totally disabled employees apparently represents the countervailing legislative concession in the balancing of interests.

The primary purpose of the compensation system is to provide payments for loss of earnings because of disability and not to provide payments for the injury which caused the disability or for resultant pain and suffering. All relevant factors of each individual case must be considered in the judicial determination of entitlement to benefits based on inability to earn wages. The fact of continued earnings is always an important factor, and the faet of the employee’s enduring substantial pain while earning those wages has been a judicially imposed exception in mitigation of the fact of continued earnings.

There is another practical consideration raised by the fact that a particular employee must endure substantial pain in continuing to earn wages. When the particular employee cannot continue in gainful employment without suffering substantial pain caused by the compensable injury, the logical inference is that he has a residual partial disability which eventually is likely to worsen. Because courts are called upon to grant or deny payment of benefits and not to defer payment, the tendency would be to grant benefits in case of doubt, rather than to deny benefits in a final adjudication. This consideration no doubt was an unexpressed factor in the judicial decision to award total disability benefits to an employee who continued to earn wages (and thus literally was not totally disabled), but endured substantial pain in doing so.

The 1975 amendment offers an attractive alternative to an award of total disability benefits in this situation. A judgment decreeing partial disability allows the payment of benefits to be deferred when an employee is earning as much as or more than he did at the time of injury, so that an employer does 'not have to pay benefits during the weeks the employee maintains full earnings, while the employee is protected during those weeks (up to the statutory maximum) in which the pain prevents him from earning any wages or limits his earnings to an amount less than the benefits due. And if and when the pain from the original injury eventually prevents the employee from working (assuming the causal relationship), the employee will be entitled to total disability benefits.

We conclude that, under the 1975 amendment to R.S. 23:1221, an employee is generally not totally disabled if he can “engage in any gainful occupation for wages”, R.S. 23:1221(2), [unless he fits into the classification of an “odd-lot” worker — see 2 Larson, Workmen’s Compensation Law, § 57.51 (1976)]. Rather, such an employee is partially disabled to perform the duties in which he was customarily engaged, R.S. 23:1221(3). And when the employee can perform such duties, but only in substantial pain, he is still only partially disabled. Nevertheless, the award of benefits for partial disability protects the employee when and if the disability causes his earnings to diminish temporarily or to cease, so that he will not be faced with an adjudication of no disability that has acquired the authority of the thing adjudged.

We therefore conclude that fairness and justice, as well as the spirit of the 1975 amendment, requires the judgment in favor of this plaintiff (who at best has only some partial disability) to be modified to award benefits based on partial disability. Since plaintiff has actually earned more wages every week since the injury than he did at the time of the injury, there are no benefits presently due. In any week in the future that the September, 1976 injury prevents plaintiff from earning full wages, benefits are. due in the amount of the difference between the wages he was earning at the time of the injury and any lesser wages he actually earns in that week in any gainful occupation for wages, until there has been a payment of benefits for a total of 425 weeks or until the pain caused by the injury either becomes insubstantial or becomes totally disabling.

AMENDED AND RENDERED.

BEER, J., concurs and assigns reasons.

GULOTTA, J., dissents and assigns reasons.

CHEHARDY, J., dissents for the reasons assigned by GULOTTA, J.

BEER, Judge,

concurring.

I respectfully concur in the result reached by Judge Lemmon’s majority opinion.

However, I do not agree with that portion of the majority opinion which states:

“Despite the lack of medical testimony that the pain was substantial or disabling, we accept the factual finding that plaintiff did endure substantial pain in continuing employment, and we proceed to consider the legal issue of whether the overall evidence supports a finding of total disability.”

In my view, the record does not support a factual finding that plaintiff endured “substantial pain.”

GULOTTA, Judge,

dissenting.

I dissent.

In this workmen’s compensation suit plaintiff was awarded benefits at the rate of $95.00 per week, commencing September 21, 1976 “for disability, during the period of his disability, . . . , subject to a credit for each installment already paid; and for medical expenses up to the ‘amount allowed’ ...”

Jules Dusang, an ironworker-welder, sustained injury to the right hand, wrist, elbow and shoulder on September 21, 1976 in a work connected accident. Plaintiff’s injuries were diagnosed as a sprain of the right wrist and biceps tendonitis of the right shoulder. Dusang continued in his employment after the injury until January 1977 at which time he was terminated because of a reduction in work force. For approximately six weeks thereafter Dusang received unemployment compensation. However, following that interim plaintiff again became employed and continued employment in similar type work as that in which he was engaged at the time of the accident. At the time of trial Dusang was apparently employed as an electrician welder doing welding of a less arduous type. His hourly pay between the date of injury (September 21, 1976) and the trial dates (April 4, 1978 and May 11, 1978) had increased.

Defendant, appealing, contends that an employee who has no functional disability, has never been hospitalized, required no surgery, required no medication approximately five or six months after the accident, and who has been employed continuously (with the exception of the time that he received unemployment compensation) since the accident in the same or similar type of work, earning a greater income than at the time of injury, is not entitled to workmen’s compensation.

Defendant relies heavily on LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1st Cir. 1977), writ denied, 351 So.2d 174 (La.1977); Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977); and Barksdale v. Southern Airways, Inc., 365 So.2d 493 (La.App. 1st Cir. 1978). In the LeBlanc case the First Circuit held that an employee is not entitled to workmen’s compensation benefits where he is earning greater wages than at the time of the accident. In that case, the Court stated:

“. . . If such an employee earns wages equal to or greater than those earned at time of injury, he is entitled to no compensation during the period such equal or greater wages are earned.”

Plaintiff, on the other hand, relying on the Third Circuit decision in Phillips v. Dresser Engineering Co., 351 So.2d 304 (La. App. 3rd Cir. 1977), writs denied, 353 So.2d 1048 (La.1978), contends that a claimant who is working in substantial pain is entitled to receive workmen’s compensation, even though the employee earned more upon returning to work as a welder than he had been earning at the time of the accident. See also Rachal v. Highland Insurance Company, 355 So.2d 1355 (La.App. 3rd Cir. 1978), writ denied, 358 So.2d 645 (La.1978).

The primary problem with which we are confronted is whether one who suffers substantial pain when he continues in his same or similar occupation, where no showing had been made by the employee that his injury would cause substantial pain while performing any other occupation, is permanently and totally disabled or temporarily and totally disabled on the one hand, or partially disabled on the other.

The Legislature by Act 583 of 1975, as incorporated in R.S. 23:1221, redefined disability under the Compensation Act. R.S. 23:1221 provides, in pertinent part, as follows:

“(1) For injury producing temporary total disability of an employee to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability . . . .”

In Phillips, supra, a welder’s helper who sustained a work connected injury but who returned to his trade as a welder and worked in substantial pain, was found to be permanently and totally disabled. In Ra-chal, supra, a claimant, who was employed both as a police officer and a farm worker, was injured while working on the farm. He did not return to the farm after the injury but did return to police work. However, the evidence in Rachal indicated that although the plaintiff was working as a police officer he was doing so in substantial pain. The Court found Rachal totally disabled for the purposes of workmen’s compensation. Although the plaintiff in that case had never returned to work on the farm he had returned to light police work five months after the accident. The Rachal Court stated:

“Our interpretation of the amended statute is that an injured employee is totally disabled if he is unable to pursue any gainful employment while experiencing substantial pain.”

The court went on to say:

“We thus hold that this employee, who suffers substantial pain when engaging in gainful employment, is totally disabled.”

However, in the LeBlanc case, supra, the Court found partial disability where an employee had suffered lung damage due to inhalation of ammonia gas while employed in an industrial plant and was unable to return to his same job, but had obtained employment in another unrelated occupation at an hourly rate of pay in excess of that earned by him at the time of the injury.

This Court in Dufrene v. St. Charles Parish Police Jury, 371 So.2d 378 (La.App. 4th Cir. 1979) concluded that a heavy equipment operator who could not, because of substantial pain, perform the heavy work of lifting or pulling required of him, suffered partial disability where there was no additional evidence to show that he “reasonably could not do work of a reasonable character available to him.” The Dufrene Court went on to say that the evidence:

. . does not negate his ability to do lighter work of the same character, for example, lighter machines or vehicles, or work not involving heavy lifting or pulling with his left hand.”

In connection with the factual question of plaintiff’s “substantial pain” in the instant case, plaintiff’s wife and co-workers, who were working with plaintiff at the time of the accident and subsequent thereto, testified of Dusang’s continuous complaints of shoulder pain from the time of the accident up to the dates of trial. The co-workers explained that plaintiff’s pain restricted him in performing certain tasks and that on occasions plaintiff received assistance in his work. According to these witnesses, plaintiff complained practically every day about the pain in his shoulder. These workers indicated that ironworkers and welders were occasionally required to do heavy lifting and overhead work. There was also testimony indicating that plaintiff’s present job as an electrician welder was less arduous than his pre-injury work as an iron-worker welder.

Plaintiff’s medical treatment extended from the day following the accident (September 21,1976) to July 21,1977 and included cortisone injections, heat treatment and over-the-counter drugs. The claimant’s injury was described as bicipital tendonitis of the shoulder, as well as reactive synovitis of the wrist. Because of plaintiff’s failure to respond to conservative treatment, Dr. Kenneth Adatto, who saw plaintiff on February 17, 1977 and treated him through July 21, 1977, indicated that surgery would probably be required to reroute the biceps tendon. He indicated further that lifting, extending and rotating the arm would produce pain. These activities, according to the physician, cause the bicipital tendon to become stretched.

Plaintiff’s supervisor testified that between the date of the accident, September 21, 1976 and the date of termination, January 21, 1977, plaintiff neither complained about shoulder pain nor complained of inability to carry out his job.

The orthopedic surgeon who examined plaintiff on October 22, 1976 and found biceps tendonitis of the right shoulder and a sprain of the right wrist, also found plaintiff much improved on an October 27th visit. Further improvement was noted on a November 2, 1976 visit. Plaintiff was seen again by this physician on November 8, 1976, at which time he was found to be “greatly improved”. According to this expert, a person suffering from this type of tendonitis would “nearly always get well” and “recover completely”. This witness stated further that tendonitis of this nature rarely continues.

In my opinion, the evidence supports a conclusion that for the period of time between the date of injury through the time of trial, Dusang was unable to perform his occupation as a welder without substantial pain. And, well established is the jurisprudential rule that an injured workman is not required to work in substantial pain. See Dufrene, supra; Phillips, supra; Rachal, supra; and LeBlanc, supra.

However, is such an employee, as our plaintiff, entitled to total or partial disability benefits?

Unfortunately, the Legislature failed to come to grips with the substantial pain problem in circumstances such as the instant case. If we literally interpret sections 1 and 2, as written, and apply them to the facts in our case, an employee would only be able to establish permanent total disability or temporary total disability if he could show that he was unable to engage in every type of work without substantial pain. Were we so to interpret the statute, we would be placing a virtually impossible task upon the employee who pursues work of a similar nature and does so in substantial pain. Because we are dealing here with social legislation, we cannot construe the statute so literally as to place an unreasonable burden of proof on the employee.

Accordingly, I conclude that where an employee proves that he has pursued his post-accident employment of a similar but lighter nature, but does so in substantial pain, even while receiving greater wages than earned at the time of the injury, he is permanently and totally disabled or temporarily and totally disabled. The trial judge awarded benefits for disability during the period of disability, subject to a credit for any amount already paid by defendant. I find no error in that judgment.

CHEHARDY, Judge, dissenting for reasons assigned by GULOTTA, J.

I respectfully dissent for the reasons assigned in the dissenting opinion of Gulotta, J.

      . Since workmen’s compensation benefits are payments substituting in part for lost wages, rather than compensating (as do tort awards of general damages) for pain and suffering, the fact' of pain would be otherwise irrelevant in a compensation case.
      The ultimate test for degree of disability is the capacity to earn wages after the accident. The fact of actual earnings over a sustained period after the accident is not a conclusive measure of earning capacity, but does constitute an important consideration in the ultimate determinátion, and all circumstances bearing on those earnings are relevant considerations.

      . See R.S. 23:1331, which provides for review when the employee’s incapacity increases or diminishes subsequent to the judgment.

      . Although not clear from the record, it appears that tendonitis of the shoulder is an inflammation of the biceps tendon. This tendon runs in the groove of the shoulder and is encased in ligaments and tissue. The irritation and inflammation can be caused spontaneously or as the result of an injury. Synovitis of the wrist seems to be an inflammation of the membranes located in the joint of the wrist.

      . Although there are no reasons for judgment included in the record, a reasonable inference arises that by awarding the disability the trial judge concluded that Dusang proved substantial pain.


author: GULOTTA, Judge.

text:
    PLANTATION ACCEPTANCE CORPORATION v. Thomas H. STONE.
    No. 10530.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 6, 1979.
    Rehearing Denied Feb. 20, 1980.

      Cabibi & Cabibi, Charles E. Cabibi, Jr., New Orleans, for plaintiff-appellee.
    Levenson & Bonin, Leonard L. Levenson, New Orleans, for defendant-appellant.
    Before GULOTTA, BEER and GARRISON, JJ.
   GULOTTA, Judge.

Plantation Acceptance Corporation sued Thomas Stone for the balance due on a note, and obtained a judgment against him for $162.00 plus stipulated interest, attorney’s fees and costs. Stone’s subsequent petition to annul the judgment and to grant injunctive relief from a garnishment in execution of the judgment was dismissed. However, the trial judge amended the judgment on the note to allow Stone a credit for $60.00. Stone appealed, contending the trial judge erred in dismissing the petition for an injunction and in failing to annul the judgment on the note.

Stone based his petition to annul on the plaintiff’s failure to credit him with a $60.00 payment made a few days before plaintiff’s suit was filed. At trial, both Plantation’s owner and its office manager admitted that the affidavit of correctness of account, upon which the default judgment was based, erroneously failed to credit Stone with the $60.00 payment. In addition, however, the office manager testified that the affidavit of correctness was not executed in the presence of a notary.

We find no merit to defendant’s contention that the judgment should be annulled because the affidavit misstated the amount due. The evidence shows this was neither fraud nor ill practice, but rather an oversight by plaintiff. The trial judge corrected it without objection by plaintiff. Further, payment or partial payment are affirmative defenses, which Stone should have raised in the original suit. He neither alleged nor proved any reason for his own failure to plead payment. It is well settled that a defendant cannot maintain an action for nullity of a default judgment based on allegations which should have been pleaded as a defense in the original suit. See Hillary v. Gastel Corp., 358 So.2d 342 (La.App. 4th Cir. 1978); Allen v. Michell, 303 So.2d 214 (La.App. 4th Cir. 1974); Gulf Acceptance Loan Corp. v. Demas, 205 So.2d 855 (La.App. 4th Cir. 1968); Steele v. Ruiz, 202 So.2d 376 (La.App. 4th Cir. 1967).

Nor do we find merit to Stone’s argument that the trial judge was without authority to amend the original judgment. LSA-C.C.P. art. 1951 provides:

“A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party.
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.”

Stone contends the amendment to the judgment was to correct an error of substance rather than calculation. This is immaterial, however; where the error in a judgment is one of substance, correction can be made by appropriate contradictory proceedings, as was done here. Houston Oil Field Material Co. v. Pioneer Oil and Gas Co., 211 So.2d 681 (La.App. 4th Cir. 1968). The amended judgment merely corrects, in favor of Stone, an error based on an unintentional mistake by Plantation’s office manager. Stone was benefited rather than prejudiced by the amendment.

Finally, we reject Stone’s claim that because the affidavit of correctness of the account was not sworn to by the affiant in the presence of the notary public, the default judgment should be annulled. Assuming, but not holding, the affidavit is not valid, the affiant nevertheless testified in the annulment hearing regarding the status of the Stone account. If the original suit on the note had been litigated, after answer had been filed by Stone, presumably the affiant would have testified as to the correctness of the account. Under these circumstances, the validity or invalidity of the affidavit would have then become moot. By not answering the petition Stone permitted plaintiff to take a default judgment based on an affidavit subsequently attacked on technical grounds in. a motion to annul a final judgment on the grounds of illegal practice. Had defendant appeared to defend in the original suit, he could have traversed the affidavit and forced plaintiff to present testimony or other evidence at that time.

It is important to realize that no claim is made by Stone that the signature of affiant is not that of plaintiff’s office manager. No fraud is alleged. Nothing in this situation has operated to deprive Stone of any legal right, nor would enforcement of this judgment be unconscionable nor inequitable. See Alonso v. Bowers, 222 La. 1093, 64 So.2d 443 (La.1953); Gumina v. Dupas, 159 So.2d 377 (La.App. 4th Cir. 1964). Under these circumstances, the trial court did not err in refusing to annul the judgment.

For the foregoing reasons, therefore, we affirm the judgment of the district court.

AFFIRMED.

      . According to Charles Mannina, owner of Plantation Acceptance Corporation, the account was sent over to their attorney for collection on April 17, 1978. Stone paid $60.00 on April 20, 1978 and Plantation’s attorney filed suit on April 24, 1978. The affidavit of correctness of account was dated May 16, 1978, and the judgment on the note was signed May 19, 1978.


text:
    Joyce W. CHIVLEATTO v. Mildred A. DIVINITY et al.
    No. 11137.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 6, 1979.

      C. G. Norwood, Lawrence J. Centola, Jr., New Orleans, for relators.
    John H. Brooks, Gretna, for respondent.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   REDMANN, Judge.

A nurse and a hospital apply for writs to review a trial court’s ruling which merely stayed a malpractice action, in ruling on an exception of no cause of action based on the Medical Malpractice Act, La.R.S. 40:1299.-47(B).

It does not appear from the application and its attachments that either applicant showed in the trial court that she or it is “a health care provider covered by this Part ” within La.R.S. 40:1299.47(B) (emphasis added). § 40:1299.41(D) provides:

A health care provider who fails to qualify under this Part is not covered by the provisions of this Part and is subject to liability under the law without regard to the provisions of this Part .... (Emphasis added)

Unless a health care provider qualifies it is clearly not' “covered,” Everett v. Goldman, La.1978, 359 So.2d 1256, and the one year medical malpractice prescription of R.S. 9:5628 runs immediately from the malpractice or its discovery, without suspension by any request for a medical review panel, Ferguson v. Lankford, La.1979, 374 So.2d 1205.

This application, unlike that in Dufrene v. Duncan, La.App. 4 Cir., 1979, 371 So.2d 1215, does riot show that applicants have qualified and are therefore covered under the statute. Ferguson therefore prevents dismissing this lawsuit on an exception of no cause of action whose sole basis is failure to allege non-coverage by the Medical Malpractice Act.

The general law, La.C.C. 2315, is that everyone (including health care providers) is liable for the damages he causes. The exception under the special law for health care providers provides an exception to the general law, not in favor of all health care providers but only in favor of all covered health care providers. The conventional rule is that one claiming the benefit of an exception to the general law must show that he comes within the exception; Hortman-Salmen Co. v. White, 1929, 168 La. 1049, 123 So. 709. Otherwise every plaintiff would have to allege (to state a cause of action ?) that his defendant is not a covered health care provider. That is simply not the law; to the contrary, it is the defendant who must show that he is a covered health care provider, or that he enjoys any other immunity from suit.

The exception of no cause of action is not an appropriate pleading for presenting the objection that defendant is a covered health care provider because no evidence can be introduced on that exception, La.C. C.P. 931. The dilatory exception pleading prematurity would have afforded the opportunity to present evidence, C.C.P. 930, and would have been an appropriate pleading leading to a possible dismissal, C.C.P. 933; Goldman, supra.

Because Dufrene, 371 So.2d at 1216, n.2, spoke of the “record fact that defendants are covered by the statute,” we deem Dufrene’s dismissal of the suit correct. But our case has no such “record fact” and to dismiss it for failure to state a cause of action would be error, notwithstanding the expression in Dufrene (not essential to its result) that a petition does not state a cause of action if it fails to allege that a defendant is not a covered health care provider.

Accordingly, the trial judge did not err in refusing to dismiss plaintiff’s petition on defendant’s exception of no cause of action. Writs are therefore refused.

WRITS REFUSED.

LEMMON, J., concurs.

      . No action against a health care provider covered by this Part, or his insurer, may be commenced iri any court of this state before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section and an opinion is rendered by the panel. By agreement of both parties, the use of the medical review panel may be waived.


text:
    RIVER ROAD CONSTRUCTION INC. v. BOARD OF COMMISSIONERS FOR the LAFOURCHE BASIN LEVEE DISTRICT et al.
    No. 10131.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1979.
    Rehearing Denied Feb. 20, 1980.

      Robert E. Leake, Jr., Hammett, Leake, Hammett, Hulse & Nelson, Rainer Lorenz, Noble, Slaughter, Clayton & Lorenz, New Orleans, for plaintiff.
    James 0. Manning, Metairie, Felix H. Savoie, Jr., Napoleonville, for defendant Lafourche Basin Levee Dist.
    William J. Guste, Jr., Atty. Gen., Stephen J. Caire, Asst. Atty. Gen., State of Louisiana Dept, of Justice, New Orleans, for defendants Dept, of Public Works and Alfred E. Simpson.
    Before REDMANN, BEER and GARRISON, JJ.
   REDMANN, Judge.

Plaintiff’s low bid of $238,265 brought it a contract for a four-mile levee enlargement along Bayou Gauche and related work for defendant Board. The plans and specifications were prepared and construction was supervised by defendant state Department of Public Works under the direction of defendant engineer Alfred E. Simpson. Plaintiff now appeals from the dismissal on the merits of its demands against those three defendants for the substantial losses, both direct and consequential, it suffered in performing the contract.

The question is whether those losses are recoverable either from the Board, partly under the contract as written and partly as’ plaintiff would have it reformed, or from Public Works and Simpson, by their fault in design and in punitive supervision of performance of the contract work.

Plaintiff attributes most of the losses to being misled by Public Works’ “typical” levee cross-sections in the documents on which plaintiff bid and to being obliged to use humus and organic clay in the construction. The “typical” cross-sections, by grid lines marked in feet, suggested distances from borrow pit to levee that were not typical but substantially shorter than the actual distances that fill had to be moved, notwithstanding that the cross-sections also placed the pit at “minimum” ten feet from right-of-way line and noted “right-of-way varies.” The humus, because of its instability and greater shrinkage (compared to non-humus soil), required a significant overbuilding beyond design measurements of the levee, plaintiff contends, and further added to production costs because' “our construction equipment could not stand up on it.”

The losses claimed are substantial. Maximum distances from borrow pit to levee averaged, plaintiff says, 47% greater than the distances suggested by the typical cross-sections, and plaintiff seeks both an increase of 47% ($46,295) over its original cost estimate as well as the apparently duplica-tive items of $13,975 for the costs of moving the fill-moving machines and the mats upon which they sat from side to side and $13,409 for double handling of fill in some areas where two machines were required. The humus fill required overbuilding to allow for shrinkage far beyond the quantity estimated by plaintiff in its bid calculations, plaintiff contends, increasing costs both by the extra work in overbuilding and then in removing the excess overbuild as required by Public Works notwithstanding that the contract did not expressly prohibit final overbuild. The humus also necessitated the use of lighter, less productive equipment, as in dressing the surface of the levee. The total claimed for these items is $128,391, and another $7,141 is claimed for attempts to repair slides, or levee failures, attributed to the use of humus. A related claim is $7,502 for subsidence fill which defendants rejected because some subsidence plates could not be found. Delays occasioned by the main problems described produce claims for $13,900 withheld as liquidated damages and for increased costs of $33,040 for the shell road at the landside toe of the levee and $3,983 for fertilizing and seeding the levee. The record fairly establishes that plaintiff did lose money on this contract; an independent accountant placed direct costs at about $200,000 more than the contract price (although defendants’ evidence suggests other explanations for plaintiff’s cost overruns). Indirect cost or loss to plaintiff resulted from its reduced working capital and thus reduced bonding capacity and consequent inability to bid on jobs of the size it proved it had profitably performed in the past.' For this indirect loss plaintiff claims $250,000.

TYPICAL SECTIONS

There is no gainsaying that the typical vertical-plane sections, drawn on a scale of 1" to 10' and each relating to conditions over hundreds or thousands of feet of levee right-of-way, at times underrepresent the distance from the land side of the borrow pit to the water side of the levee. But the sections do note “right of way varies” between arrows indicating total right of way. The reasonable person would interpret the cautionary “right-of-way varies” as indicating that the actual distances would be in some cases more and in some less, with a “typical” representation constituting a middle ground though not necessarily an average. Often, as between stations 154 + 00 and 180 + 00, actual ground distances— there 185' to 223' — -at every point exceeded the “typical” section distance — there 175' (compared to an actual average of 192'). At another point, station 102 + 00, the actual distance was 229' and the “typical” section’s distance was 130'. That typical section, however, applied to the 8,400' from station 25 + 00 to station 109 + 00, and, in addition to the note “right of way varies,” the great distance covered might suggest a wide variation in right-of-way widths because of changing watercourse and levee placement — a variation confirmed by the horizontal-plane plans (scaled 1" to 100') which were also part of the documents upon which bids were based. (The problem with the plans is that they did not clearly indicate the waterside toe of the levee, but only the “base line” which was at times within the enlargement work and at times not. The only source of accurate measure at each 100' station was field notes and actual sections that Public Works had and that were available to bidders’ inspection.)

The “typical” sections’ underrepresentation of distances as described does not, however, justify any bidder’s reliance on short distances in selecting boom length for fill-moving equipment such as a dragline. The bidder needs to know maximum rather than average (or “typical”) distance; he can swing his longer boom through less than 180° for shorter distances but he cannot increase the reach of a short boom. We therefore reject claims for having to move equipment and mats laterally and for double handling of fill at the longest distances.

The bidder might reasonably utilize “typical” distances (if that meant “average” distances) to estimate the total time appropriate equipment would require to move the fill from borrow pit to levee. But it appears to us facially unreasonable that plaintiff’s cost of and entitlement to pay for moving fill a horizontal distance of 147' could be 47% more than that of moving fill 100'. Plaintiff cited nothing other than the basic formula work equals force times distance, which proves nothing except that that presumably minor fraction of the work necessary to overcome the resistance of friction in the boom’s rotating is greater over a longer swing; the work in digging and lifting out the fill, in beginning and braking its horizontal movement from pit to levee, and in lowering it into place all presumably remain the same. Thus loss attributed by plaintiff to understatement of “typical” distances is not established by plaintiff’s 47% formula. Nor is it established by plaintiff’s records of costs because those included the costs of considerable unnecessary overbuild and lesser matters such as time lost by equipment failure.

The record thus supports the trial judge’s rejection of the claims based on the typical cross-sections.

SOIL CONDITIONS

Public Works had, but disregarded, a recommendation from independent soil engineers that humus and organic clay not be used in the construction of the levee. The specifications called for no waste of borrow pit material and on one occasion when plaintiff left humus on the berm Public Works required its removal and use in the levee.

Plaintiff complains that the humus obliged it to overbuild (to compensate for shrinkage) more than it had estimated; gave insufficient support to the heavy, high-production equipment it planned to use, forcing substitution of lighter, less productive equipment; and was unsuitable to the three-to-one slope design of the levee, making it unstable and causing slides and failures.

The record supports the trial judge’s rejection of these charges. The soil engineers did not testify and their report is not in evidence. What is in evidence is that south Louisiana soil is high in humus content, yet even larger levees have been built with soil containing humus and have not failed. At least one independent expert, with many years experience in the U.S. Corps of Engineers, “concurfred] fully in the finding of the design engineer that it was impractical on an economic and actual basis to separate the humus material from the silts and clay.”

Defendants also note that the documents bid upon required the bidder “to examine carefully the site of the proposed work, proposal, plans, specifications, and contract . and it will be assumed that he has investigated and satisfied himself as to the conditions to be encountered . . ■. Plaintiff does not excuse itself from this obligation and from the consequent presumed knowledge that a prudent bidder would have. Defendants presented evidence that even plaintiff’s heaviest equipment did not bog down. They also presented evidence of certain violations of contract requirements such as that fill be dropped in place from not further than two feet away, which could have caused some sliding of fill (but was not the cause of failures because defendants have excused plaintiff from further attempt at remedying the three failures experienced from land faults).

We disagree with the trial judge only on the issue of pay for subsidence demonstrated by subsidence plates. The plates are steel, two feet square, and are set in place every 200 feet prior to beginning construction (a condition of the contractual right to pay for any necessary extra fill). After construction the plates are located by rods and the added volume needed to keep the levee as high as designed is then calculated and paid on the bid price per cubic yard. Defendants declined to approve and pay some subsidence because 34 of the 93 plates could not be located under the levee upon final inspection on January 24, 1977, although they were set in place and had been located, showing subsidence, on a preliminary inspection on October 27, 1976. Defendants paid $6,765 for subsidence over the 59 plates found. Defendants’ project engineer testified “Certainly I think there was subsidence” at the areas the plates were not found, and “I see no reason to doubt” that the subsidence where plates were missing was comparable to that at nearby plates. His calculations would allow $3,898 ($10,663 -6,765) for similar subsidence on the other 34 plates, but he refused to approve the expenditure of public funds because the contractor had the contractual obligation to prove the amount by finding the plates. The engineer’s attitude is most commendable, but our interpretation of the contract requirement is that its purpose is satisfied by a locating of the plates on a preliminary inspection and thereafter the public fisc and the engineer’s own integrity are protected by the circumstance that reasonable uniformity of soil conditions justifies averaging the unlocated plates with the located plates. We therefore award this amount.

On the issue of the removal of the overbuild, we note that general specification 3.58 provides that material placed “elsewhere than in places designated on the drawing . . . the contractor may be required to remove . . . .” Some experts explained that overbuild could cause instability problems and we cannot say— notwithstanding the lack of any expressed tolerances in the specifications, such as the six inches the engineers imposed — that defendants exceeded their contractual rights in requiring removal of some of the overbuild.

The other claims resulting from delays in performance are not recoverable because the delay is not attributable to defendants.

The Judgment appealed from is reversed in part and there is judgment for plaintiff against the Board of Commissioners for the Lafourche Basin Levee District for $3,898 with legal interest from January 24, 1977, and half of all costs; and it is in other respects affirmed.