author: DENNIS, Justice. BLANCHE, Justice CALOGERO, Justice, CALOGERO, Justice,

text:
    Joseph JOHNSON, Jr. v. FIREMAN’S FUND INSURANCE COMPANY, et al.
    No. 82-C-0778.
    Supreme Court of Louisiana.
    Dec. 10, 1982.
    Concurring Opinion Jan. 17, 1983.
    Rehearing Denied Jan. 21, 1983.

      Sidney L. Patín, Henderson, Hanemann & Morris, Houma, for applicant.
    Lawrence J. Duplass, Johnston & Du-plass, Robert E. Birtel, Gordon Hackman, Herbert B. Bowers, III, Hammett, Leake & Hammett, New Orleans, for respondents.
   DENNIS, Justice.

We are called upon to decide whether a worker compensation insurer can recover from an uninsured motorist carrier amounts it is obliged to pay an employee whose work-related automobile accident was caused by the fault of an underinsured motorist. The previous courts held that a worker compensation carrier has no cause of action for such recovery from either the employer’s or the employee’s uninsured motorist carrier because neither carrier is a “third person” who is “legally liable to pay damages” to the employee so as to require it to reimburse the compensation insurer under the worker compensation act. We affirm in part and reverse in part, 411 So.2d 538. An uninsured motorist carrier is a third person legally liable to pay damages to an injured employee protected by its coverage because it is obliged by law and the issuance of its policy to repair the same damage which the tortfeasor has caused and to guarantee recovery as if the tort-feasor had been insured. Therefore, a worker compensation insurer can recover amounts paid to an injured employee out of uninsured motorist coverage. La.R.S. 23:1101. However, this is subject to one limitation. Worker compensation insurers cannot recover out of uninsured motorist coverage paid for by an employee because the worker compensation statute prohibits direct or indirect imposition of the cost of compensation upon an employee. La.R.S. 23:1163.

Plaintiff, Joseph Johnson, Jr., filed suit alleging that he had been injured in an automobile accident while in the scope and course of his employment and while driving his employer’s vehicle. He alleged that an insurance policy issued to Joseph Becnel, the other driver involved in the accident, was insufficient to cover his damages and named as defendants Fireman’s Fund Insurance Company, his employer’s uninsured motorist carrier, and Lumberman’s Mutual Casualty Company, his own uninsured motorist carrier. His employer’s worker compensation insurer, Continental Insurance Companies, intervened seeking reimbursement for compensation it is obliged to pay Joseph Johnson, Jr. on account of the automobile accident. Both Joseph Johnson and Fireman’s Fund filed exceptions of no cause of action to the intervention which were sustained. The court of appeal affirmed without expressing its rationale but citing Lute v. City of Lake Charles, 394 So.2d 736 (La.App. 3d Cir., 1981); Bannon v. Edrington, 392 So.2d 186 (La.App. 4th Cir., 1980); Gentry v. Pugh, 362 So.2d 1154 (La.App. 2d Cir.), writ denied, 363 So.2d 922 (La.1978). These opinions adduce two reasons for holding that the employer is not entitled to recover from the uninsured motorist carrier: the carrier is not a “third person” from whom reimbursement may be sought; and the carrier is not “legally liable to pay damages” to the employee so as to entitle the employer or his insurer to recover from the carrier under the worker compensation act. We granted writs to determine whether these holdings correctly reconcile the conflicting interests and rights which arise among the employee, the worker compensation insurer, and the uninsured motorist carriers in this situation.

The worker compensation statute provides that when an injury for which compensation is payable creates in some person (other than those against whom compensation is the employee’s exclusive remedy) a legal liability to pay damages, the claim or payment of compensation shall not affect the employee’s right of action against such third person. Any employer obliged to pay compensation may recover from such third person any amount he has paid or become obligated to pay as compensation. La.R.S. 23:11o!. The employer’s claim shall be given precedence in apportioning the recovery of damages in a suit by the employer or employee, and the employee shall be entitled to any excess. No compromise with such third person by either the employer or the employee shall be binding on the other unless assented to by him. La.R.S. 23:1103.

The uninsured motorist statute provides that automobile liability insurance, delivered or issued for delivery in this state, with respect to vehicles registered or principally garaged here, shall contain coverage for the protection of insureds who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, unless such coverage has been rejected. La.R.S. 22:1406 D(l)(a). Thus, the object of the uninsured motorist statute is to promote full recovery of damages by innocent automobile accident victims by making uninsured motorist coverage available for their benefit as primary protection when the tortfeasor is without insurance and as additional or excess coverage when he is inadequately insured. Bond v. Commercial Union Assurance Co., 407 So.2d 401 (La.1981); Niemann v. Travelers Ins. Co., 368 So.2d 1003 (La.1979); Whitten v. Empire Fire and Marine Ins. Co., 353 So.2d 1071 (La.App.Cir.1977).

The central purpose of both the worker compensation act and the uninsured motorist statute is the protection of the injured person. The compensation act protects him by providing compensation and by reserving to him any tort recovery from a third person that exceeds his compensation benefits. The uninsured motorist act protects him by making available in all situations, not just those that are work-connected, an opportunity for some recovery in place of what he would have gotten if the tortfeasor had been insured. See, 2A A. Larsen, The Law of Workmen’s Compensation, § 71.23(h) (Desk Ed. 1982).

Closely related concepts underlying both acts are that the ultimate loss for wrongdoing should fall on the wrongdoer and that the injured person should not receive more in reparation than that required to make him legally whole. 14 W. Malone & A. Johnson, Louisiana Civil Law Treatise-Worker’s Compensation § 372 p. 209 (1980). The employer is given so much of the employee’s recovery from a third person as is necessary to reimburse him for his compensation outlay, and the employee is given the excess. La.R.S. 23:1103. The uninsured motorist carrier who either totally or partially pays the employee automobile accident victim for the damages he has suffered is subrogated to the employee’s action against the uninsured or underinsured tort-feasor, reserving to the employee who has been only partially compensated for his loss a lawful cause and preference over the insurer for payment out of the tortfeasor’s property. La.C.C. arts. 2160-62. La.R.S. 22:1406(D)(4); Bond v. Commercial Union Assurance Co., 407 So.2d 401, 411 (La.1981).

Because the employer is entitled to proceed against a “third person” for reimbursement for compensation paid, it is important to ascertain who is a “third person” for these purposes. The worker compensation statute provides that when an employee’s work-related injury creates a legal liability to pay damages in some person, other than those listed in La.R.S. 23:1032, that person is a “third person.” La.R.S. 23:1101. The parties excluded from the category of third persons by reference to La.R.S. 23:1032 are those persons against whom compensation is the employee’s exclusive remedy, such as the claimant’s employer, co-employees, principal, principal’s employer, partner, or employee of such employer, director of stockholders of employer or principal. See La.R.S. 23:1032. Accordingly, a “third person” is anyone who is legally liable to pay an employee damages because of his injury who is not included within the list of classifications provided by La.R.S. 32:1032. Such a “third person” is amenable to suit by the employer’s worker compensation insurer by virtue of the insurer’s statutory subrogation to all rights and actions to which the employer is entitled. La.R.S. 23:1162.

Because neither of the uninsured motorist carriers in this case come within the classifications of La.R.S. 23:1032, they qualify as “third persons” if they are legally liable to pay the employee damages because of his work-related automobile accident. Accepting the allegations of the petition and the intervention as proven for purposes of the exception of no cause of action, it is clear that the carriers would be legally liable to pay the employee certain sums because of his injury caused by the fault of an underinsured motorist. The crucial issue is whether these sums are “damages” under the worker compensation and uninsured motorist statutes.

We conclude that when an uninsured motorist carrier becomes liable under its policy, it is required to pay “damages” within the meaning of La.R.S. 23:1101 to the person protected. Although uninsured motorist coverage is provided for the protection of persons injured by uninsured or underin-sured tortfeasors, and not for the benefit of such wrongdoers, the statutorily specified coverage guarantees the injured person’s recovery of damages as if the tortfeasor had been insured. La.R.S. 22:1406 D(l)(a). Subject to conditions not granted the tort-feasor, the uninsured motorist carrier is independently obliged to repair the same damage which the tortfeasor has wrongfully caused. By effect of law and the delivery or issuance for delivery of automobile liability insurance, both the uninsured motorist carrier and the tortfeasor are obliged to the same thing. Hoefly v. Government Employee’s Ins. Co., 418 So.2d 575 (La.1982). The fact that the uninsured motorist carrier is bound by the combined effect of the tortfeasor’s wrongful act, the uninsured motorist statute, and the carrier’s delivery or issuance for delivery of automobile liability insurance, while the tortfeasor is obliged merely because of his delict, does not prevent them from being obliged to the same thing. An obligation may be in solido, requiring that the obligors be obliged to the same thing, even though the obligations of the obligors arise from separate acts or by different reasons. La.Civ.Code art. 2092; 418 So.2d at 579.

It would be inconsistent with the legislative aim of the worker compensation statute to construe its reference to “damages” as having a narrow or special meaning. The statute was not designed to restrict the employer’s right of reimbursement to recover from the tortfeasor. Rather, the thrust of the provision is to prevent double-recovery and to eventually allocate the loss to the tortfeasor. We have previously effectuated the statutory purpose by holding that, under the worker compensation statute, the employer’s right of action is predicated only on the liability of a third person to pay damages, and such liability is not expressly limited to negligence or tort liability. Cf. Thomas v. Matthews Lumber Co. of Mansfield, 253 La. 1, 215 So.2d 832 (1968); Board of Comm. v. City of New Orleans, 223 La. 199, 65 So.2d 313 (1953). See W. Malone & A. Johnson, supra, § 370 at p. 189. The provision of R.S. 23:1101 authorizing an employer’s suit against third persons legally liable in damages to the employee was enacted in 1914, long before the law had developed the concept of uninsured motorist coverage or even the direct action against liability insurers. Since the legislature could not have anticipated the future laws by which insurers would become surrogates of tortfeasors, its failure to specifically state that liability and uninsured motorist insurance carriers may qualify as third persons legally liable for damages does not warrant insulating them from reimbursement actions. We therefore see no reason to limit applicability of the employer’s right of action strictly to the liability of a tortfeasor, as distinguished from the liability of an uninsured motorist insurer or a liability carrier whose obligation to pay damages under the statute is contingent upon a determination of the legal liability of a tortfeasor.

In reaching a contrary conclusion, the court of appeal relied exclusively upon the decisions of its sister circuits in Lute v. City of Lake Charles, 394 So.2d 736 (La.App. 3d Cir.1981), Bannon v. Edrington, 392 So.2d 186 (La.App. 4th Cir.1980), and Gentry v. Pugh, 362 So.2d 1154 (La.App. 2d Cir.), writ denied, 363 So.2d 922 (La.1978). These cases represent too narrow a view of 23:1101, and fail to give effect to the legislative aim to minimize double-recovery operative in the statute. Gentry, the first case to tackle the issue, found that uninsured motorist carriers were not “third persons” as that term is contemplated in La. R.S. 23:1101’s grant of the right of reimbursement against any “third person” legally liable to pay damages. 362 So.2d at 1156. This rationale was subsequently followed without comment in Lute v. City of Lake Charles, supra and by the court of appeal in the instant case. The second rationale offered by the courts of appeal to address the issue at hand was posited in Bannon v. Edrington, supra. In that case, the court held that the uninsured motorist carrier was not “legally liable to pay damages” such as is required to qualify under 23:1101. As we have explained above, these rationales represent an unduly restrictive interpretation of the phrases “third person” and “legally liable to pay damages” as they are contemplated in La.R.S. 23:1101.

Although the foregoing is fully applicable to the worker compensation insurer’s right of action against uninsured motorist coverage generally, these precepts are tempered by a further statutory rule when a compensation insurer seeks recovery from insurance paid for by the employee. The employee is protected against the dilution of his compensation benefits by the compensation act’s specific prohibition against direct or indirect collections from an employee to reimburse the employer, his insurer or any person for the cost of worker compensation insurance. La.R.S. 23:1163. Bryant v. New Orleans Public Service Inc., 414 So.2d 322 (La.1982); Malone & Johnson, supra, p. 209. Consequently, the employer or his worker compensation insurer cannot recover compensation reimbursement from a fund purchased by the employee for his own benefit, such as the employee’s own uninsured motorist coverage.

DECREE

Applying these precepts to the present case, we conclude that the intervenor has stated a cause of action against Fireman’s Fund, the employer’s uninsured motorist carrier, but has failed to state a cause of action against Lumberman’s Mutual, the employee’s uninsured motorist carrier. The plaintiff’s exception of no cause of action to the intervention by the worker compensation carrier against the employee’s uninsured motorist carrier was correctly sustained. The previous courts’ judgments sustaining the exception of no cause of action to the compensation carrier’s intervention against the employer’s uninsured motorist carrier were in error. Accordingly, we affirm the part of the court of appeal judgment dismissing Continental’s interventions against Lumberman’s, but reverse the part sustaining the exception as to Continental’s intervention against Fireman’s Fund. We remand for further action consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

CALOGERO, J., concurs.

BLANCHE, J., dissents and hands down reasons.

BLANCHE, Justice

(dissenting).

I would agree with the majority opinion that an interpretation that an uninsured motorist carrier is not a third person from whom reimbursement may be sought by the workmen’s compensation carrier would be an unduly restrictive interpretation of LSA-R.S. 23:1101. However, I cannot subscribe to the opinion of the majority that to allow the workman’s compensation carrier to seek reimbursement from the employee’s own uninsured motorist carrier would dilute his compensation benefits contrary to law. In my view, to allow the workmen’s compensation carrier to recover from the employee’s UM carrier would not violate either the letter or spirit of LSA-R.S. 23:1163. cf. Butler v. Board of Trustees of Elec. Workers Pension and Relief Fund of the City of Monroe, 333 So.2d 676 (La.App. 2nd Cir.), writs denied, 337 So.2d 515 (La.1976); Basco v. State, Dept. of Corrections, 335 So.2d 457 (La.App. 1st Cir.), writs denied, 338 So.2d 701 (La.1976).

R.S. 23:1163 provides:

“It shall be unlawful for any employer, or his agent or representative, to collect from any of his employees directly or indirectly either by way of deduction from the employee’s wages, salary, compensation, or otherwise, any amount whatever, or to demand, request, or accept any amount from any employee, either for the purpose of paying the premium in whole or in part on any liability or compensation insurance of any kind whatever on behalf of any employee or to reimburse such employer in whole or in part for any premium on any insurance against any liability whatever to any employee or for the purpose of the employer carrying any such insurance for the employers own account, or to demand or request of any employee to make any payment or contribution for any such purpose to any other person.”

In this case, the employee procured the uninsured motorist coverage of his own accord. The coverage was not procured at the employer’s insistence or for its benefit with any contemplation that it would serve to offset any judgment in workmen’s compensation either against it or its workmen’s compensation carrier. The interpretation given R.S. 23:1163 by the majority is unduly expansive. In my view, this expansive interpretation has an unduly restrictive effect on R.S. 23:1101, which allows the workmen’s compensation carrier to seek reimbursement from any third person liable for damages to the employee. The UM carrier of the employee falls into this group, and the workmen’s compensation carrier should be allowed to seek reimbursement from it.

Accordingly, I respectfully dissent from that portion of the opinion denying the workmen’s compensation carrier the right to seek reimbursement from the employee’s own uninsured motorist carrier.

CALOGERO, Justice,

concurring.

I concur in the majority determination that the worker’s compensation insurer cannot recover from the employee’s uninsured motorist carrier. I am also in accord with the majority holding that, as a general principle, the worker’s compensation insurer can seek reimbursement from the employer’s uninsured motorist carrier. However, I disagree with the majority reasoning that the worker’s compensation carrier’s right to reimbursement stems from the fact that the uninsured motorist carrier and the tort-feasor are solidary obligors, and I also disagree with any implication which may be drawn from the opinion that the right of reimbursement is unlimited and exists in all circumstances.

As I stated in my dissent to Hoefly v. Government Employee’s Ins. Co., 418 So.2d 575 (La.1982) I do not think that an uninsured motorist carrier and a tortfeasor are solidary obligors. Rather, I am of the view that the insured’s contractual right of recovery against the uninsured motorist carrier creates the carrier’s “legal liability to pay damages” and, at least, when asserted by the insured, it triggers a right of intervention for reimbursement in favor of the worker’s compensation insurer under La. R.S. 23:1101.

Furthermore, I believe the worker’s compensation insurer’s right to reimbursement is a limited one which only comes into play where the injured employee’s damages are less than the combination of his worker’s compensation recovery and his uninsured motorist recovery, and then, only to the extent (or amount) that the insurance coverage exceeds the damages. For example, if an employee suffered $40,000.00 of damages, was paid $20,000.00 by his worker’s compensation insurer and his employer had uninsured motorist coverage available to the employee with $20,000.00 limits, I do not think that the worker’s compensation insurer should be entitled to reimbursement for the $20,000.00 it paid, leaving the injured employee with $20,000.00 of uncompensated damages. Also, under the principles established in Fontenot v. Hanover Ins. Co., 385 So.2d 238 (La.1980), the worker’s compensation insurer should only be able to seek reimbursement from the uninsured motorist carrier to the extent that the uninsured motorist carrier’s payment is attributable to the same damages that the worker’s compensation carrier has already paid for, that is, lost wages and medical expenses, but not pain and suffering.

It also seems that a different matter would be presented where the employee did not bring suit against the uninsured motorist carrier. Since the uninsured motorist carrier’s liability is contractual (at least in part if not completely) a question would arise as to what right the worker’s compensation insurer would have to bring a suit against the uninsured motorist carrier where the injured employee, for whatever reason, had chosen not to do so. A different legal question would also be presented had it been established that the uninsured motorist policy contained the common policy provision, that the amount payable under uninsured motorist coverage is to be reduced by the amount paid on account of such bodily injury under any workmen’s compensation law, and the injured employee’s damages did not exceed the available insurance limits.

Finally, a problem is presented as to which insurer, the uninsured motorist carrier or the worker’s compensation insurer, would have the primary right to reimbursement from the tortfeasor. If the injured employee had $20,000.00 of damages, the worker’s compensation carrier had paid him $20,000.00 and he had uninsured motorist coverage for $20,000.00, the insurers would have paid a total of $40,000.00. Clearly they cannot each recover $20,000.00 from the tortfeasor who only caused a total of $20,000.00 of damages.

However, since none of the above problems have heretofore been presented in this case, and since it is before us on an exception of no cause of action, I concur in the majority holding that, as a general proposition, the worker’s compensation carrier can intervene in the employee’s suit against his employer’s uninsured motorist carrier.

CALOGERO, Justice,

concurring in denial of the rehearing applications of Joseph Johnson, Jr., and Firemen’s Fund Insurance Company.

When I concurred in this case originally I was troubled by a number of concerns. These are expressed in my concurring opinion. One of these concerns was the effect of certain policy language that generally appears in uninsured motorist policies excluding payments to worker’s compensation insurers. At the time I was not aware that such language was in fact present in Firemen’s Fund’s policy. This fact has been pointed out in Firemen’s Fund’s rehearing application.

The author of the original opinion was no doubt aware of this issue. However, since the case is here on an exception of no cause of action, the issue concerning the effect of the policy language is not ripe for consideration. Fireman’s Fund may properly assert this argument by way of a Motion for Summary Judgment or in defense to the claim, upon remand.

      . La.R.S. 23:1101 provides:
      “When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as third person) other than those persons against whom the said employee’s rights and remedies are limited in Section 1032 of this Chapter, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.
      Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or become obligated to pay as compensation to such employee or his dependents. Amended by Acts 1976, No. 147 § 2.”

      . La.R.S. 22:1406, in pertinent part provides:
      “D. The following provisions shall govern the issuance of uninsured motorist coverage in this state.
      (l)(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer. Any document signed by the named insured or his legal representative which initially rejects such coverage or selects lower limits shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto.”

      . In distinguishing between the right of the worker compensation insurer to recover against the employer’s uninsured motorist carrier but not against the employee’s, our statute’s approach is similar to that taken by other jurisdictions. See Larsen, supra, 71.23(a) (“The unanimous holding of other jurisdictions disfavors a lien upon the proceeds of the claimant’s private uninsured motorist policy”) and 71.23(i) (“cases have appeared holding both that liens against the proceeds of the employer’s uninsured motorist policy should be barred, and that they should be allowed”). Although the Louisiana courts of appeal reached correct results in rejecting such claims against employees’ uninsured motorist carriers in Ban-

        non v. Edrington, supra, and Gentry v. Pugh, supra, they failed to notice or state that the reasons for barring recovery do not apply when the compensation payer sues the employer’s uninsured motorist carrier.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    James E. MOUTON, et al., Plaintiffs-Appellants, v. ARMCO, INC., et al., Defendants-Appellees.
    No. 82-271.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 12, 1982.
    See also, 417 So.2d 889.
    LeGardeur & Fitzsimmons, Ltd., M.J. Le-Gardeur, Jr., and Brady M. Fitzsimmons, Covington, for intervenor-appellant.
    Andrus, Preis & Kraft, Gregory J. La-Borde, Lafayette, Guglielmo & Lopez, Gina B. Tuttle, Opelousas, Hammett, Leake & Hammett, Franklin D. Beahm, New Orleans, Davidson, Meaux & Sonnier, Farley Sonnier, John K. Hill, Jr., Jeansonne, Gib-bens, Blackwell & Briney, John A. Jean-sonne, Jr., Lafayette, for defendants-appel-lees.
    Before FORET, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This appeal presents the issue of whether a wife has a cause of action to recover damages for mental anguish, loss of consortium and embarrassment allegedly caused by injuries suffered by her husband.

James Mouton filed suit for damages resulting from injuries allegedly caused by the negligence of several defendants. Mouton’s wife intervened seeking damages for mental anguish, loss of consortium and embarrassment resulting from the husband’s injuries. The defendants in the intervention included National Union Fire Insurance Company and Jack Wade Drilling, Inc.

The trial court dismissed the wife’s intervention by an exception of no cause of action filed by National Union Fire Insurance Company. The trial court also dismissed the intervention by granting a motion for summary judgment filed by Jack Wade Drilling, Inc. The wife appeals from these two judgments.

This is the second appeal arising out of this same suit. The first appeal [James E. Mouton, et al. v. Armco, Inc., et al., 417 So.2d 889 (La.App. 3rd Cir.1982)], presented the identical issue as is presented in this appeal. In Number 8840 the trial court had dismissed the wife’s intervention as against three other defendants, Armco, Inc., Ball Marketing, Inc. and Bituminous Insurance Company. This court affirmed the judgment of the trial court in Number 8840 by opinion rendered on July 21, 1982.

Since the issues in this appeal and in Number 8840 are identical, we shall affirm the trial court judgments herein for the reasons set forth in Number 8840.

For the reasons set forth in James E. Mouton, et al. v. Armco, Inc., et al., 417 So.2d 889 (La.App. 3rd Cir.1982), our docket number 8840, the judgments of the trial court are affirmed. All costs of this appeal shall be paid by the intervenor-appellant.

AFFIRMED.

      . We note that La.C.C. art. 2315 was amended by Act 202 of 1982 which added the following language:
      “Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons
      who would have had a cause of action for wrongful death of an injured person.”
      We point this out for reference only, as the cause of action in the case at hand arose long prior to the recent amendment.


author: CULPEPPER, Judge.

text:
    William E. BRODNAX, Plaintiff & Appellant, v. Marshall T. CAPPEL, Sheriff, et al., Defendants & Appellees.
    No. 82-425.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 2, 1982.

      Shelby E. Bohannon, Alexandria, for plaintiff & appellant.
    Charles F. Wagner, Pineville, Frank Craig, III, of Breazeale, Sachse & Wilson, Baton Rouge, for defendants & appellees.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   CULPEPPER, Judge.

This is a suit for worker’s compensation benefits, or, in the alternative, damages for personal injuries caused by negligence. In his original petition, plaintiff alleges that he was employed by Marshall T. Cappel, Sheriff of Rapides Parish, as a deputy sheriff assigned to the Rapides Parish Detention Center, and that while at work he slipped and fell on a catwalk and injured his back. Only Sheriff Cappel was named as a defendant in the original petition. In an amended petition, plaintiff adds the State of Louisiana as a defendant.

The State filed an exception of no cause of action on the grounds that the plaintiff was an employee of Sheriff Cappel, not the State of Louisiana, or, in the alternative, that plaintiff was an official of the State or a political subdivision thereof, and therefore was not entitled to worker’s compensation against the State. The District Court sustained the State’s exception of no cause of action and dismissed plaintiff’s suit against the State, both as to plaintiff’s demand for worker’s compensation and the alternative demand in tort.

The Sheriff filed an exception of no cause of action on the grounds that the plaintiff was not an employee of the Sheriff or, in the alternative, that the plaintiff was an official of the State or a political subdivision thereof, and therefore was not entitled to worker’s compensation against the Sheriff. Judgment was rendered sustaining the Sheriff’s exception of no cause of action as to the demand for worker’s compensation, but overruling the exception as to plaintiff’s demand against the Sheriff in tort.

Plaintiff has appealed the judgment dismissing both his worker’s compensation demand and his tort demand against the State. He has also appealed the judgment dismissing his worker’s compensation demand against the Sheriff.

The issues are: (1) Did the Trial Court err in dismissing plaintiff’s suit against the State, both for worker’s compensation and for damages in tort? (2) Did the Trial Court err in dismissing plaintiff’s suit against the Sheriff for worker’s compensation but overruling the exception of no cause of action as to plaintiff’s demand in tort? We will discuss separately plaintiff’s demand against the State and that against the Sheriff, because different rules are applicable to each.

DEMANDS AGAINST THE STATE
LSA-R.S. 23:1034 provides as follows:
“§ 1034. Public employees; exclusiveness of remedies
A.The provisions of this Chapter shall apply to every person in the service of the state or a political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or a political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission; further, provided that members of the police department, or municipal employees performing police services for any municipality who are not elected officials shall be covered by this Chapter and shall be eligible for compensation; and provided further that criminal deputy sheriffs for the parish of Orleans shall be covered by this Chapter and shall be eligible for compensation as provided herein.
B. Except as expressly and specifically provided to the contrary in Subsection A hereof, the officials excepted from coverage under the provisions of this Chapter, in Subsection A of this Section, include all public officers as defined by R.S. 42:1. In this regard, sheriffs’ deputies are, under R.S. 42:1, 33:1433, and 33:9001 et seq., appointed public officers and officials of their respective political subdivisions, the parish law enforcement districts.
C. Notwithstanding the provisions of Subsection A hereof, any political subdivision may, in its own discretion and by using its own funds available for same, provide workmen’s compensation coverage for its officials, in addition to having to provide such coverage for its employees.
Amended by Acts 1977, No. 528, § 1; Acts 1981, Ex.Sess., No. 25, § 1, eff. Nov. 19, 1981.”

The accident in question in the present case occurred on November 23, 1980 at a time when LSA-R.S. 23:1034 read substantially as shown by subparagraph A quoted above. Subparagraphs B and C were added by Act 25 of 1981, effective November 19, 1981.

In cases involving claims by deputy sheriffs for worker’s compensation, the courts held for many years under the statute prior to the 1981 amendment that deputy sheriffs were not employees of the sheriff, but were instead “an official of the state or a political subdivision thereof” and therefore were excepted from coverage by the Workmen’s Compensation Act. Richardson v. Heyd, in and for the Parish of Orleans, 278 So.2d 167 (La.App. 4th Cir.1974); Johnson v. Northern Assurance Company of America, 193 So.2d 920 (La.App. 3rd Cir.1967); Mitchell v. James, 182 So.2d 144 (La.App. 3rd Cir.1966).

The problem started in Foster v. Hampton, 352 So.2d 197 (La.1977). There the plaintiff sued the East Baton Rouge Sheriff’s Department for damages for personal injuries caused by the negligence of a deputy sheriff while driving one of the sheriff’s vehicles. The sheriff filed an exception of no cause of action, alleging that under LSA-R.S. 33:1433 and the jurisprudence the sheriff is not liable for acts of his deputies under the doctrine of respondeat superior. The Court of Appeal and the Supreme Court affirmed the ruling of the district court sustaining the exception of no cause of action by the sheriff. The Supreme Court noted that the State of Louisiana was not a party to that proceeding, but it stated in dicta that a deputy sheriff is an officer and employee of the State of Louisiana.

After Foster v. Hampton, supra, was remanded to the district court, the plaintiff amended his petition to name the State of Louisiana as a defendant. The trial court sustained an exception of prescription filed by the State, and the Court of Appeal affirmed. The Supreme Court granted a writ and held that a deputy sheriff is an officer and an employee of the State, and that the filing of the original suit against the sheriff interrupted prescription because the State is a solidary obligor. 381 So.2d 789 (La. 1980).

Next came Phillips v. State, through Department of Transportation, 400 So.2d 1091 (La.App. 1st Cir.1981) in which a deputy sheriff of East Baton Rouge Parish was injured while driving a sheriff’s vehicle in the course of his employment. He sued the State of Louisiana for worker’s compensation, or, in the alternative, damages for negligence of the State in allowing a large pothole to remain in the highway. A divided Court of Appeal held the deputy sheriff had no “right of action” against the State for damages in tort, since his exclusive remedy against the State was for workmen’s compensation. The majority relied on Foster v. Hampton, 381 So.2d 789 (La.1980) which had held, as discussed above, that a deputy sheriff is an employee of the State for purposes of respondeat superior, the majority concluding that a deputy sheriff therefore must also be held to be an employee of the State for purposes of workmen’s compensation.

Then came Jenkins v. Jefferson Parish Sheriffs Office, 402 So.2d 669 (La.1981). There the plaintiff sought damages for personal injuries caused by the negligence of a Jefferson Parish deputy in the operation of an official vehicle while on duty. The State was not a party. The trial court sustained the sheriff’s exception of no cause of action, the Court of Appeal affirmed, and the Supreme Court granted writs. The Supreme Court discusses the Foster v. Hampton cases, supra, and Act 318 of 1978, which the Court states was for the obvious purpose of overruling the dicta in the first Foster decision to the effect that a deputy sheriff is an employee of the State, for whose acts the State is liable under the doctrine of respon-deat superior. Act 318 of 1978 expressly provides that the State of Louisiana shall not be liable for any damages caused by a sheriff or an employee of a sheriff. A divided Supreme Court held in Jenkins that deputy sheriffs are employees of the sheriff, not the State.

Next comes Act 25 of the First Extraordinary Session of 1981, which added subparagraphs B and C to LSA-R.S. 23:1034, quoted above. The title to Act 25 expressly states that its purpose is “to interpret and clarify by definition the ‘officials’ excepted” from worker’s compensation coverage, and subparagraph B expressly lists deputy sheriffs as exempted officials. There can be no doubt as to the legislative intent, despite the controversy in the jurisprudence discussed above. The legislature states it intends and always has intended that deputy sheriffs are officials exempted from worker’s compensation.

Plaintiff’s principal argument on appeal is that his injury occurred on November 23, 1980, before Act 25 of 1981 became effective on November 19, 1981. Plaintiff contends Act 25 made a change in the substantive law and therefore has only prospective effect, not retroactive effect. Rodriguez v. Brown & Root, Inc., 410 So.2d 325 (La.App. 4th Cir.1982). We find no merit in this argument. As stated above, the title to Act 25 of 1981 expressly states its purpose is to interpret and clarify by definition the “officials” exempted from coverage by the Worker’s Compensation Act. Jurisprudence has firmly established the rule that laws enacted by the legislature for the purpose of interpreting or clarifying previous laws are given retroactive effect. Dripps v. Dripps, 366 So.2d 544 (La.1979).

We conclude plaintiff has no cause of action against the State of Louisiana for workmen’s compensation.

The next question is whether the plaintiff has alleged a cause of action against the State of Louisiana for damages based upon negligence. Paragraph 16 of plaintiff’s petition alleges the following:

“Petitioner alleges that on or about 11:00 o’clock A.M. on November 23, 1980, as petitioner was proceeding down the catwalk on the south side of the Rapides Parish Detention Center between cellblock 513 and 512, he suddenly slipped and fell causing severe painful and permanent injuries to his person which are enumbered below. Petitioner alleges that defendant was negligent in the following non-exclusive particulars.
“A. Failure to provide petitioner with a proper and safe place for the performance of his duties;
B. By failing to provide plaintiff with proper equipment for the performance of his duties;
C. Failure to provide petitioner with adequate help in the performance of his duties;
D. Failure to provided adequate medical care subsequent to the accident complained of above.
E. Such other acts of negligence which may be determined after the completion of the discovery pursuant to Louisiana Code of Civil Procedure Articles.”

All of the alleged negligence derives from duties owed by an employer to its employee. Although for the reasons stated above, plaintiff is barred by statute from recovering worker’s compensation benefits, he nevertheless could possibly have a cause of action against his employer or a third party for damages in tort. Plaintiff has not alleged that he is an employee of the State. He alleges only that he is an employee of the Sheriff. Moreover, plaintiff makes no allegations as to how the State of Louisiana could be responsible for the conditions under which plaintiff worked at the Rapides Parish Detention Center. We conclude plaintiff has failed to state a cause of action against the State of Louisiana in tort.

LSA-C.C.P. Article 934 provides that when the grounds of the objection pleaded by the peremptory exception may be removed by amendment to the petition, the judgment sustaining the exception shall order such amendment within a delay allowed by the court. We do not know any possible allegations that plaintiff could make that the State breached a duty which it owed to the plaintiff in this case. In his appellate brief, plaintiff argues only his demand for worker’s compensation. He does not argue that he has a cause of action against the State in tort. If plaintiff knows of some possible amendment which he could make to his petition so as to state a cause of action against the State in tort, he can suggest this in application for rehearing and we will consider it.

We conclude the trial judge correctly sustained the State’s exception of no cause of action and dismissed plaintiff’s suit as against the State, both for his demand for worker’s compensation and his demand in tort.

DEMANDS AGAINST THE SHERIFF

As stated above, the district court sustained the Sheriff’s exception of no cause of action as to plaintiff’s demand for worker’s compensation but overruled the exception as to plaintiff’s demand for damages in tort. This procedure has been prohibited by our Supreme Court. In Rodriguez v. American Bankers Insurance Company of Florida, 386 So.2d 652 (La.1980), plaintiff sued his automobile collision insurer for the value of his totally destroyed automobile, and in addition he sued for “damages for breach of fiduciary obligation.” The defendant insurer filed an exception of no cause of action as to the demand for damages for breach of fiduciary obligation. The district court sustained the exception and ordered that item of damages struck from the petition. Defendant’s application to the Court of Appeal for writs was denied, but the Supreme Court granted writs and held as follows:

“When a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975).
The purpose of the rule is to prevent multiple appeals. The trial court’s ruling in this case is a final judgment which creates the right of appeal as to only part of plaintiff’s cause of action and forces the intermediate court to consider the merits of that cause of action in a piecemeal fashion. The preferable procedure is for the trial court to overrule the exception and at the trial on the merits to exclude evidence of damages for breach of fiduciary obligation, it the court believes such damages are not recoverable. Relator can then include the evidence by means of a proffer, and in any subsequent appeal all issues can be presented at one time.”

Under the Supreme Court ruling in Rodriguez, it was error for the district court to sustain the Sheriff’s exception of no cause of action as to the demand for worker’s compensation but overrule the exception as to the demand for damages in tort. This case must therefore be remanded to the District Court for proceedings in accordance with Rodriguez.

DECREE

For the reasons assigned, the judgment sustaining the exception of no cause of action filed by the State of Louisiana and dismissing plaintiff’s suit against the State is affirmed. The judgment sustaining the Sheriff’s exception of no cause of action to plaintiff’s demand for workmen’s compensation is reversed and set aside, and this case is remanded to the District Court for further proceedings on plaintiff’s demand against the Sheriff in accordance with law and the views expressed herein.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.


author: COVINGTON, Judge. MELVIN A. SHORTESS, Judge.

text:
    John LAND v. Brenda TEEPELL, et al.

    No. 82 CA 0236.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      R. Loren Kleinpeter, Baton Rouge, for plaintiff-appellant John Land.
    Samuel R. Cicero, Asst. Parish Atty., Baton Rouge, for defendants-appellees City of Baton Rouge through the City Police Department, John Anders and Mary Mclin.
    Before COVINGTON, LEAR, and LANIER, JJ.

      . Also incorrectly spelled “Teeple” in the proceedings.

   COVINGTON, Judge.

This is a suit which seeks damages for false arrest. After carefully reviewing the ■record, we find that the written reasons for judgment of the trial judge, of which a copy is attached, correctly dispose of the factual and legal issues presented in this case.

Accordingly, for the reasons expressed by the trial judge, which we adopt as our own and annex as Appendix A, the judgment appealed is affirmed, at appellant’s costs.

AFFIRMED.

APPENDIX A

JOHN LAND VS. BRENDA TEEPLE, ET AL.

WRONG NUMBER 238,279 DIVISION D 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE STATE OF LOUISIANA

WRITTEN REASONS FOR JUDGMENT

MELVIN A. SHORTESS, Judge.

John Land (plaintiff) was arrested on August 3, 1979, and charged with aggravated crimes against nature, aggravated burglary, simple kidnapping, and aggravated assault pursuant to an arrest warrant executed by Donna Sims. As a result of his arrest, plaintiff was incarcerated for three days. At the time, plaintiff’s arrest was thought to be a break in the so-called “Gorilla Man” case. The remaining defendants in this false arrest suit are the arresting officers, John Anders and Marian McLin, and the City of Baton Rouge. Plaintiff contends that the defendants did not have sufficient probable cause to arrest him because of the tentative information given by Sims.

Plaintiff first came to the attention of the defendants after a prowler complaint by Brenda Teepell (incorrectly spelled Tee-pie). Teepell positively identified plaintiff as the man she had seen in her carport. Teepell’s home was located in the same general area of the “Gorilla Man” attacks. That fact and the physical description she supplied made plaintiff a “Gorilla Man” suspect. After Teepell positively identified a photo of plaintiff, it was presented to Sims (a “Gorilla Man” victim) in a photo “show up.” Sims testified that she picked out plaintiff’s photo but told the officers “... he looks too young.” She further testified that the officers told her the photo could be several years old, in an effort to overcome her reservation. No evidence was submitted relative to the age of this photo. The arrest warrant executed by Sims (D-l) indicates that she positively identified plaintiff as the person who broke into her home. At a subsequent line-up at the Parish prison, Sims again identified plaintiff as her assailant.

Plaintiff alleges that the officers did not have probable cause for arrest in spite of having an arrest warrant valid on its face, which was subsequently corroborated by Sims’ identification of Land in the line-up. Neither counsel for the parties nor the court has been able to find jurisprudence directly on point. The reported cases deal with a warrant invalid on its face or with a warrantless arrest. From these cases it is clear that the test for probable cause is one of reasonableness under the circumstances. In Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), the court stated:

These long prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating those often opposed interests. Requiring more would unduly hamper law enforcement.

Here, the defendant officers had a witness who was ambiguous only as to the suspect’s apparent age. Sims had never before identified any photo as being that of her assailant. Ultimately, she executed an arrest warrant positively identifying plaintiff as her assailant. At trial Sims testified that John Anders said she needed to sign the warrant so plaintiff’s house could be searched for a gun. Considering the circumstances, if Anders used this device to help obtain Sims’ affidavit, the court does not feel that this tactic was undue, capricious or unreasonable. It was simply a mistake of a reasonable man, “... acting on facts leading sensibly to their conclusions of probability.” Anders and McLin had probable cause to arrest plaintiff.

For the above reasons, judgment is rendered in favor of defendants, dismissing this suit, and will be signed accordingly.

BATON ROUGE, LOUISIANA, this 17th day of December, 1981.


author: LANIER, Judge.

text:
    Ronald G. CIRCELLO v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, et al.
    No. 82 CA 0265.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 23,1983.

      Paula Cobb, Arthur Cobb, Baton Rouge, for plaintiff-appellant Ronald G. Circello.
    Charles W. Wilson, III, Baton Rouge, for defendant, third party plaintiff and third party defendant-appellee Geico and Lafferty-
    Brent E. Kinchen, Baton Rouge, for defendant, third party plaintiffs and third party defendants-appellees Mid-American and Burton.
    Kenneth E. Barnette, Baton Rouge, for defendant-appellee Prudential.
    Dorothy D. Thomas, Boris Navratil, Baton Rouge, for defendant-appellee Casualty Reciprocal.
    Daniel R. Atkinson, Baton Rouge, for defendant-appellee Allstate Ins. Co.
    Before COVINGTON, LEAR and LANIER, JJ.
   LANIER, Judge.

This is a suit for damages in tort arising from a three car automobile accident. A trial by jury resulted in findings that the negligence of the drivers of all three vehicles caused injury to the plaintiff. The plaintiff’s damages were fixed at $3,000. Judgment was rendered in the trial court against the insurers of the three drivers in solido for the amount of the jury award. Judgment was also rendered dismissing the plaintiff’s claim against his underinsured motorist’s carrier and his claim against the excess insurer of one of the drivers. The plaintiff took this devolutive appeal asserting (1) that counsel for one of the defendants made improper comments concerning him which adversely affected the jury, and (2) that the damage award was inadequate. The insurers of two of the drivers answered the appeal asserting that their insureds were not liable for the plaintiff’s damages. One of the appealing insurers alleged in the alternative that the damage award was excessive and should be reduced.

I. FACTS

On October 14, 1979, at approximately 5:30 A.M., James T. Jones, Jr. was operating a 1973 Chevrolet automobile owned by his mother, Grace F. Jones, in an easterly direction on the Airline Highway at its intersection with Plank Road in East Baton Rouge Parish, Louisiana. Airline Highway is a four-lane highway running generally in an east-west direction at this point. There were two guest passengers in the Jones vehicle, Candice Matherne, who was in the right front seat, and the plaintiff, Ronald G. Circello, who was in the right rear seat. The primary coverage on the Jones vehicle was carried by Grace F. Jones with Casualty Reciprocal Exchange (Exchange). James T. Jones, Jr. had individual liability coverage with Prudential Property and Casualty Insurance Company (Prudential), which was excess coverage on the Jones vehicle. Circello carried underinsured motorists coverage with Allstate Insurance Company (Allstate).

At the same time and place, Christine P. Burton was operating a 1978 Chevrolet Nova owned by her in an easterly direction on the Airline Highway behind the Jones vehicle. Gary Breaux was a passenger in the Burton vehicle. Mid-American Casualty Company (Mid-American) was the liability insurer of Burton and her vehicle.

Jeffrey W. Lafferty was operating a 1973 Dodge Polara owned by him in an easterly direction on Airline Highway behind the Burton vehicle. There were no passengers in this vehicle. Lafferty and his vehicle were insured by the Government Employees Insurance Company (GEICO).

Jones was driving in the right (outside) lane of the two eastbound lanes of travel and approached a Toyota automobile which appeared to be either stopped or moving very slowly. Jones pulled into the left (passing) lane and commenced passing the Toyota. Burton was in the left (passing) lane behind Jones, and when she observed his vehicle in front of her, she determined that she was unable to slow down sufficiently to avoid a collision and drove her vehicle between the Jones vehicle in the left lane and the Toyota in the right lane. During this maneuver, there was a relatively minor contact between the side of the Burton vehicle and the right rear of the Jones vehicle. Lafferty was following the Burton vehicle in the left lane. When the Burton vehicle veered to the right and proceeded between the Jones vehicle and the Toyota, Lafferty was unable to sufficiently brake his vehicle and there was a severe collision between the front of the Lafferty vehicle and the rear of the Jones vehicle. Burton stopped her vehicle and returned to the scene of the accident. The Toyota automobile left the scene of the accident and its driver was never located.

II. IMPROPER QUESTIONING BY COUNSEL

Circello contends in this appeal that improper questioning by counsel for Allstate prejudiced the jury and resulted in an inadequate damage award. The transcript reveals that the following took place during the trial:

“Q. Mr. Circello, have you ever served in the military?
“A. Yes, sir, I have.
“Q. And it’s correct, isn’t it, that you were discharged from the military with less than honorable conditions?
“A. No, sir, that is not correct. I have honorable conditions.
“Q. Weren’t you discharged with a general discharge?
“A. Yes, sir, I was. General under honorable conditions.
“Q. Isn’t it a fact that you went A.W. O.L. and charges were brought against you so you could be discharged so you would not have to serve in Vietnam?
“MR. COBB: I object, Your Honor. This has nothing to do with cross-examination. He has acknowledged this. He’s the one that told this lawyer at the deposition, and all it can be is to prejudice the jury against Mr. Circello.
“THE COURT: I sustain the objection. Ladies and gentlemen of the jury, you’re ordered by the Court here to disregard the question that was asked by counsel. Do not answer the question.”

Counsel for Circello did not object to the first three questions propounded by counsel for Allstate concerning Circello’s military record. The failure of Circello’s counsel to object to these questions constitutes a waiver of his right to complain of them on appeal. Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976); Belaire v. Vanderbrook, 405 So.2d 1143 (La.App. 1st Cir.1981), writs denied 407 So.2d 749 (La.1981) and 409 So.2d 659 (La.1982).

When counsel for Circello objected to the fourth question propounded by counsel for Allstate concerning Circello’s military record, the trial judge sustained the objection, instructed the jury to disregard the question, and instructed the witness not to answer the question. At the conclusion of the trial, the judge instructed the jury to judge the case without regard to any passion, sympathy, or prejudice, and that all parties in the case stood as equals before the court. The actions taken by the trial judge on the objection by counsel for Circello were correct and proper. Temple v. Liberty Mutual Ins. Co., supra; Sanchez v. LeBlanc, 400 So.2d 349 (La.App. 4th Cir. 1981), writ denied 401 So.2d 991 (La.1981).

Even if the actions of the trial judge constituted error that improperly influenced the jury’s verdict, nevertheless, this court must undertake an independent evaluation of the facts and adjudicate the controversy before us. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

III. LIABILITY OF JAMES T. JONES, JR. (EXCHANGE)

The insurer of Jones, Exchange, answered the appeal of Circello claiming that the jury was clearly wrong in determining that the negligence of Jones was a cause of the accident and injuries to Circello.

Jones testified that he was proceeding in the right (outside) lane of the Airline Highway. He observed a slow moving and weaving Toyota in his lane of travel and slowed to a speed of approximately 20-25 miles per hour. He did not observe any vehicle behind him, put on his left blinker, and pulled into the passing lane. He was struck 8-10 seconds later. The first impact that he felt “really wasn’t a big jolt”, but the second impact occurring 2 or 3 seconds later was much harder. Jones testified that his car lights were on at this time.

The plaintiff, Circello, testified that he observed a slow moving vehicle ahead of the Jones vehicle in the outside lane. Jones slowed to approximately 35 miles per hour and started his passing maneuver. The first impact that he felt was minor. The second impact threw him into the back of the front seat, the seat broke and then fell back on him. Jones had his lights on.

Candice Matherne was asleep at the time of the accident and was awakened by the first impact.

Christine P. Burton testified that she was driving her Chevrolet Nova in the left (passing) lane with her headlights on low beam. She did not see the Jones vehicle until she was almost on it. To avoid a collision, she went between the Jones vehicle and the Toyota, but sideswiped the Jones vehicle in the process. The Jones vehicle did not have its lights on and appeared almost stopped in the roadway.

Jeffrey W. Lafferty testified that he was proceeding on the Airline Highway in the left (passing) lane at a speed of approximately 55 miles per hour. He had been following the Burton vehicle for approximately 1 mile at a distance of approximately 4 car lengths. He observed the Burton vehicle swerve to the right and he then saw the Jones vehicle for the first time. He could not turn to the right because the Toyota was located in that position. He was unable to bring his vehicle to a halt before colliding with the rear of the Jones vehicle. Lafferty had his headlights on. Lafferty did not recall if the Jones vehicle had its lights on. The Jones vehicle was going about 10 miles per hour at the time of the collision.

Although Jones testified that he did not observe any vehicles approaching behind him prior to commencing his lane change and/or passing maneuver, obviously both the Burton and Lafferty vehicles were there approaching him with their headlights on. Based on the evidence presented, the jury could reasonably conclude that Jones failed to see that which he should have seen and attempted the lane change and/or passing maneuver when it was not safe to do so. La.R.S. 32:79(1); Baptiste v. Granada, 387 So.2d 1235 (La.App. 1st Cir.1980).

Burton testified that the lights on the Jones vehicle were not on at the time of the accident. Jones denied this and claimed that they were on. Jones’ claim was corroborated by Circello. Lafferty testified that he did not recall whether Jones had his lights on or not, but that he did not see the Jones vehicle until the Burton vehicle swerved to avoid hitting it. Operating a motor vehicle on a major highway at night without lights is the grossest kind of negligence. La.R.S. 32:301; Dupas v. City of New Orleans, 346 So.2d 322 (La.App. 4th Cir.1977), reversed in part 354 So.2d 1311 (La.1978); Stutts v. Sistrunk, 245 So.2d 721 (La.App. 3rd Cir.1971), writ denied 258 La. 578, 247 So.2d 395 (La.1971). There is a reasonable evidentiary basis in the record for the jury to determine that Jones was operating his vehicle without lights.

The jury’s determination that Jones’ negligence was a cause of the accident and the injuries to Circello is based on reasonable evaluations of credibility and reasonable inferences arising from the facts. Accordingly, this determination by the jury is not clearly wrong and is affirmed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

IV. LIABILITY OF CHRISTINE P. BURTON (MID-AMERICAN)

The insurer of Burton, Mid-American, answered the appeal and contends that the jury was clearly wrong in determining that the negligence of Burton caused the accident and injuries to Circello.

For negligence to result in a legally enforceable liability it must be a cause in fact of the injury to the plaintiff. Straley v. Calongne Drayage and Storage, Inc., 346 So.2d 171 (La.1977); Dye v. Kean’s, 412 So.2d 116 (La.App. 1st Cir.1982), writ denied 413 So.2d 506 (La.1982). The evidence indicates that the impact between the Burton vehicle and the Jones vehicle was not significant. Specifically, Circello testified that he was not injured when the Burton vehicle sideswiped the Jones vehicle. Cir-cello specifically testified that he was not injured until the impact of the Lafferty vehicle caused him to be thrown into the back of the front seat, which then broke and fell on him. Thus, even if it is assumed that Burton was negligent in the operation of her vehicle, that negligence did not cause injury to Circello. The jury was clearly wrong in determining that there was a causal relationship between the negligence of Burton and any injuries that Circello may have sustained, and the jury finding in this regard is reversed. Arceneaux v. Domingue, supra.

V. QUANTUM

The jury rendered an unitemized damage award in favor of Circello in the sum of $3,000. Circello appeals this ruling contending that he is entitled to an award of no less than $30,000 plus specials of $2,076. Circello itemizes his special damages as follows:

1. Gilbert’s Ambulance Service $ 60.00
2. Baton Rouge Radiology Group 18.00
3. Baton Rouge General Hospital 70.00
4. The Bone and Joint Clinic 135.00
5. Dr. Harry H. Philibert 1,793.00
TOTAL $2,076.00

On June 28,1977, Circello received severe electrocution burns of the right arm which resulted in the arm being amputated 4 inches below the elbow. These injuries rendered him totally and permanently disabled and there is no claim for loss of wages in these proceedings. On January 28, 1979, Circello consulted Dr. Harry H. Philibert, a family physician emphasizing relief from pain, for treatment of nerve tumors and multiple neuromas in his right arm stump. During the period of January 23, 1979, through October 10, 1979, Circello had approximately 20 visits with Dr. Philibert for this condition. The primary treatment administered was the injection of the problem areas of the stump with steroids to relieve pain.

On October 14,1979, Circello was brought from the scene of the accident to the emergency room of the Baton Rouge General Hospital by ambulance. The records of the Baton Rouge General Hospital show that he complained of back pain, abdominal pain and headache. Examining revealed that he had no muscle spasms and sat perfectly straight. Circello refused to perform straight leg raising tests. X-rays of his lumbosacral spine revealed no fractures or subluxations, the disc spaces were well maintained, and there were no significant arthritic changes or bony abnormalities. The X-rays were diagnosed as a normal lumbosacral spine series. The diagnosis of the emergency room doctor was “no evidence of injury”.

At the trial, Circello testified that he hurt the lower part of his back in the accident. He was given some pain pills by the emergency room doctor, advised to use a heating pad and released. A day or two after the accident, he called Dr. Philibert and was advised to wait to be examined at the next regular appointment for his arm on October 25, 1979.

On October 25, 1979, Dr. Philibert examined Circello. Circello complained of pain in the small of his back and under his left shoulder blade. Dr. Philibert on examination found evidence of muscle spasms. Dr. Philibert diagnosed this condition as a contusion (tear) of the ligaments of the thoracic and lumbar spine. For treatment, Dr. Philibert injected the areas of the fifth lumbar vertebra, first sacral vertebra, and second through sixth thoracic vertebrae with steroids. At this same time, Dr. Phili-bert also treated Circello for the pain in his right arm stump.

In November of 1979, Circello settled the lawsuit that he had pending from the accident of June of 1977.

On November 7,1979, Dr. Philibert examined Circello again and found spasms of the trapezius muscle. Circello complained of pain around his left shoulder blade and pain on the top of his left foot. Dr. Philibert injected the trapezius muscle with steroids. Circello saw Dr. Philibert again on December 5, 1979, and had the same symptoms.

Circello testified that in December of 1979, he started shaking all over and consulted Dr. Elven E. Merse in Melville, Louisiana, and was advised that the problem was his nerves. Dr. Merse gave him some nerve pills to take for this condition. Cir-cello then consulted with a Dr. Dugas in Baton Rouge who also diagnosed the condition as a case of nerves and prescribed nerve pills. Circello apparently was not satisfied with this medical advice and on December 2, 1979, consulted Dr. Philibert concerning this condition. Dr. Philibert testified that he found severe spasms of the lumbar spine which he identified as extra-pyramidal seizures and had Circello admitted to the Metairie Hospital. Dr. Philibert prescribed cogentin for this condition and the spasms and seizures stopped. Circello saw Dr. Philibert on January 9, 1980, and complained of blurring of his vision which was a side effect of the cogentin.

On May 1, 1980, Circello was admitted to the Metairie Hospital where a bone scan, myelogram and electroencephalogram were performed. The results of these three tests were negative.

During the period of October 25, 1979, until November 4, 1981, Circello consulted Dr. Philibert 34 times. Treatment consisted of multiple steroid injections of his cervical, thoracic, lumbar and sacral spine at various times. At different times, he complained of pain in the small of his back, under his left shoulder blade, in his neck, in his left hand and wrist, and between the shoulder blades. He also complained of nervousness, blurring of vision, headaches, dryness of the mouth, knots in his stomach, and spitting up blood. During all of this period, Circello was also being treated for pain in his right arm and right stump. (It is not alleged that the right arm problems were caused by the accident of October 14, 1979.)

Dr. Philibert testified that Circello did not complain of pain in his neck until June 3, 1980, and did not complain of pain in his left arm and wrist until July 1, 1980. Cir-cello’s stomach and lung problems were not related to the accident. Circello had brachial plexus nerve root pressure of the right cervical spine which affected his right arm prior to the accident of October 14, 1977. On June 18, 1979, Circello complained of pain in his low back at the fifth lumbar and first sacral vertebrae level which was caused by the trauma of electrocution in June of 1977. On cross-examination at the trial, Circello admitted that in a deposition connected with his electrocution suit that he stated he dropped out of LSU in the summer of 1979, in part, because of back problems associated with the 1977 accident.

Dr. Stephen M. Wilson examined Circello on February 10, 1981. His report was stipulated to by the parties and read to the jury. Circello gave Dr. Wilson a history of being injured in the lower back in an automobile accident on October 14, 1979. Cir-cello told Dr. Wilson that he had no problems with his lower back prior to that time, but that he had lower back pain since. Dr. Wilson’s examination revealed a good range of motion, no muscle atrophy and no sensory loss. The straight leg raising tests were negative. X-rays taken revealed no evidence of fracture or dislocation and the vertebrae alignment was satisfactory. Dr. Wilson diagnosed Circello’s condition as muscle and ligamentous strain to the lower back from an automobile accident. He found no permanent disability from the injury and found no objective findings to explain Circello’s subjective complaints.

Damage awards made in a trial court may not be modified in an appellate court unless there is clear abuse of discretion. La.C.C. art. 1934(3); Perniciaro v. Brinch, 384 So.2d 392 (La.1980); Reck v. Stevens, 373 So.2d 498 (La.1979). After carefully reviewing all of the evidence of record as it relates to quantum, we cannot say that the jury abused the much discretion allowed it under the law. Accordingly, the award of $3,000 made by the jury is affirmed.

VI. CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Circello and against GEICO and Exchange for $3,000 is affirmed. The judgment of the trial court determining that Mid-American is liable for damages is reversed and the petition against Mid-American is dismissed with prejudice. Exchange and GEICO are cast for all costs of this appeal.

AFFIRMED IN PART AND REVERSED IN PART.

      . Candice Matherne was Mrs. James T. Jones, Jr. at the time of trial.

      . GEICO did not appeal the jury finding that Lafferty’s negligence caused injury to Circello.


author: WATKINS, Judge.

text:
    Adell BURNETT v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, E.A. CONWAY MEMORIAL HOSPITAL. (Two cases)
    Nos. 82 CA 0359, 82 CA 0360.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      James R. Dawson, Johnston, Thornton, Dawson, Hunter & Feinberg, Shreveport, for appellant.
    Frank Perez, Dept, of Health and Human Resources, Baton Rouge, for appellee.
    Robert Boland, Jr., Dept, of Civil Service, Baton Rouge, for Herbert Sumrall, Director, Dept, of State Civ. Service.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

Mrs. Adell Burnett, a Licensed Practical Nurse employed at E.A. Conway Memorial Hospital, Monroe, was suspended from employment at Conway and subsequently terminated because of alleged gross negligence in the treatment of a patient, Mrs. Luebirta Jones, which resulted in that patient’s death. Mrs. Burnett appealed to the Civil Service Commission. An appeal was taken by Mrs. Burnett from the suspension and subsequently from the termination, and while these two proceedings are contained in separate records, they were consolidated for the purposes of hearing before the Civil Service Commission and appeal to this court. The Civil Service Commission affirmed both the suspension and the termination. We affirm the determination of the Civil Service Commission.

There is no dispute as to the facts. The facts leading up to the suspension and termination are well set forth in the letter of termination, which counsel for Mrs. Burnett admitted accurately sets forth the facts (although he refused to concur in the inference of negligence drawn by the appointing authority therefrom). We quote from the termination letter dated November 20, 1980, in full:

“This letter is to advise you that you are being terminated from your position as Licensed Practical Nurse at E.A. Conway Memorial Hospital pursuant to authority contained in Civil Service Rule 12.3. The effective date of this termination is seven days from the date this letter was mailed, which date of mailing is the same as the date of this letter, or your actual receipt of the letter, whichever comes first.
The reasons for your termination are that you failed to meet the standards to which you must be held as a Licensed Practical Nurse in the following particulars:
I. In your required supervision of the nursing care of Mrs. Luebirta Jones on August 27,1980 at E.A. Conway Memorial Hospital, particularly the tube feeding of Mrs. Jones, you failed to notice that Mrs. Jones was receiving acetone or another foreign poisonous substance, through her feeding tube on that date.
II. Your failure on August 27,1980 to read the label on both the bottle that contained, or had contained, the substance being tube fed to Mrs. Jones when you removed that bottle from Mrs. Jones’ bedside tube-feeding system at approximately 5:00 p.m. on that date and on the bottle that you placed back into Mrs. Jones’ tube feeding system shortly after your aforementioned removal of a bottle from that system.
III. Your failure on August 27, 1980 at approximately 5:00 p.m. to ascertain the true content of one or both of the bottles referred to in Paragraph II immediately above.
IV. Your failure on August 27, 1980 at approximately 5:00 p.m. to notice an odor emanating from one or both of the bottles referred to in Paragraph II immediately above and to recognize that odor as not being consistent with the contents of the bottle or bottles required by Mrs. Jones’ doctor’s orders, or, alternatively, your failure on that date at that time to recognize the odor emanating from one or both of those bottles as not being consistent with the contents of those bottles as required by Mrs. Jones’ doctor’s orders.
V. Your failure on August 27, 1980 to follow the orders of Mrs. Luebirta Jones’ doctor, which order had been on Mrs. Jones’ chart since on or about August 21, 1980, requiring the tube feeding of Isocal at full strength in that you caused the tube fed Isocal to be diluted by approximately one-half on that date at approximately 5:00 p.m.
VI. Your violation of hospital policy and sound nursing practice and procedure in directing your subordinate, Gwen Rogers, Nurses Aide, to hang for use without supervision Mrs. Loubertia (sic) Jones’ tube feeding bottle on August 27, 1980, at approximately 5:00 p.m. at E.A. Conway Memorial Hospital.
VII. Your violation of hospital policy and sound nursing practice and procedure in allowing your daughter and one of her friends to visit you while you were on duty at E.A. Conway Memorial Hospital on August 27, 1980, between 3:00 p.m. and 6:00 p.m.
You may appeal this action to the Civil Service Commission within 30 days. The appeal must conform to the provisions of Chapter 13 of the Civil Service Rules.
Sincerely, /s/ Roy D. Bostick Administrator”

As counsel for Mrs. Burnett has conceded the facts as stated in the letter of termination are correct, we find the conclusion inescapable that Mrs. Burnett was guilty of gross negligence in permitting a poisonous substance to be administered to a patient entrusted to her care. To permit her continued employment at the hospital would be to endanger the lives of present and future patients at that hospital.

In argument before this court, Mrs. Burnett does not contest the facts. Her defenses are twofold, (1) that the letters of suspension and termination did not precisely set forth the nature, time, and date of the alleged improper conduct, thus denying her the opportunity to prepare an adequate defense; and (2) that she was denied procedural due process under the Fourteenth Amendment to the United States Constitution because she was not given a pre-sus-pension and pre-termination hearing.

As we stated in Major v. Louisiana Department of Highways, 333 So.2d 316 (La.App. 1st Cir.1976), under Civil Service Commission rules and due process requirements, an employee of the state against whom disciplinary action is taken in the form of removal, demotion, or reduction in pay must be informed of the nature of the charges against him so that he can rebut the charges in the event, on appeal to the Civil Service Commission, the appointing authority makes out a prima facie case against him. Times, dates, and names must be so set forth in detail in the letter of notification.

It is evident from mere cursory perusal that the letter of termination addressed to Mrs. Burnett fully informed her of all alleged negligent acts, dates, times, and persons. Thus, that letter met the requirements of a letter of dismissal as set forth by us in Major.

The letter of suspension dated August 28, 1980, is somewhat less detailed. It reads as follows:

“Pursuant to the authority contained in Civil Service Rule 12.2 you are hereby suspended from your position as Licensed Practical Nurse without pay, effective immediately pending an investigation into allegations against you. These allegations include, but are not limited to a preliminary investigation into the death of patient # [ XXX-XX-XXXX ] on August 27, 1980. The investigation conducted by the Director of Nurses which included a personal interview with you has revealed unacceptable departures from nursing standards relating to the preparation and administration of a tube feeding given to this patient on August 27, 1980. It has further been determined that you were the nurse responsible for the tube feeding in question.
You are hereby expressly advised that there may be additional allegations, charges, and/or disciplinary actions brought against you as a result of the continuing and extensive investigation being conducted by the Office of Hospitals, E.A. Conway Memorial Hospital. Nevertheless, we are herewith furnishing you with as many details as we presently can of the allegations which form the basis of and require your suspension. You are also hereby advised that your suspension is for the duration of the investigation and the time required by this office to review all aspects of this matter and make a final determination in your case. However, as prescribed by Civil Service Rule 12.2, your suspension period will not exceed 90 days, without approval from the Direction of Civil Service. Should the Agency find after investigation that disciplinary action is not warranted, the suspension will be terminated and you may be reinstated and reimbursed for time lost.
Sincerely, /s/ Roy D. Bostick Administrator”

However, the number of the patient, the date of death of the patient, and the date and nature of the alleged negligent conduct of Mrs. Burnett, the Licensed Practical Nurse being placed under suspension, are set forth in the letter. The requirements of Major have been met. Furthermore, if the letter is rather more brief than the letter of termination, it must be noted that the letter of suspension was dated August 28, 1980, one day after the alleged negligent conduct and the patient’s death. Clearly, prompt action was required to prevent a possible repetition of the same negligent conduct and tragic outcome. We find that each of the two letters met the constitutional and Civil Service requirements as set forth in Major.

Mrs. Burnett contends further that she was entitled to a pre-suspension and pre-termination hearing under the Fourteenth Amendment to the United States Constitution, and that the denial thereof was a denial of property violative of procedural due process requirements. However, under the holding of the United States Supreme Court in Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979), a pre-sus-pension hearing (and presumably a pre-ter-mination hearing, by analogy) is not constitutionally mandated if a timely post-suspension hearing is assured. Similarly, Stenseth v. Greater Fort Worth and Tarrant County Community Action Agency, 673 F.2d 842 (5th Cir.1982), holds that a terminated employee is not entitled to a pre-ter-mination hearing so long as adequate hearing is given after termination.

In the present case, Mrs. Burnett was not assured a timely post-termination hearing. Rule 13.15 of the Louisiana Civil Service Commission provides merely that hearings of appeals shall be heard “as far as practicable ... in the order in which docketed.... ” There is no requirement that the hearing be held promptly. Indeed, in the present case, the suspension letter is dated August 28, 1980, and the termination letter is dated November 20, 1980; yet, the hearing before the Civil Service Commission did not take place until November 4, 1981.

However, as we have stated, at the hearing counsel for Mrs. Burnett freely admitted all of the factual allegations contained in the letter of dismissal. She, thus, cannot say she was denied adequate hearing under Stenseth. Furthermore, the entire proceedings in the hearing in addition to counsel’s admission of facts established negligence. Even if a hearing had taken place more promptly, the facts, regardless of when admitted, would have led to the same inescapable finding of negligence. As the finding of negligence was inescapable, the same result, the Commission’s affirming suspension and termination, would have been reached.

Thus, Mrs. Burnett suffered no injury, her termination resulted from her own gross negligence, and she has no valid complaint concerning the constitutional validity of the proceedings brought for her suspension and termination. To invoke the Fourteenth Amendment to require an earlier hearing when Mrs. Burnett in effect admits her own fault would be to carry the effect of the Fourteenth Amendment to an absurd result, and make constitutional liberties and property rights as interpreted by the courts an object of mockery and derision. Mrs. Burnett sustained no unconstitutional deprivation of liberty or property. She was denied no rights.

The action of the Civil Service Commission in affirming Mrs. Burnett’s suspension and termination is affirmed, at appellant’s cost.

AFFIRMED.

SHORTESS, J., concurs. Regardless of whether or not appellant was entitled to a “timely” hearing, in this case it was an adequate hearing.


author: LEAR, Judge. /s/ Cleveland J. Marcel. Sr. District Judge

text:
    Kathleen Dupre DUSENBERY, Individually and As Natural Tutrix of the Minors, Kimberly Ann DUSENBERY and Stephanie Marie Dusenbery v. McMoRAN EXPLORATION CO. and J.M. Huber Corporation.
    No. 82 CA 0680.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Grady C. Weeks, Houma, for plaintiff and appellee.
    John Blackwell, New Iberia, for defendant and appellant Hart, Inc.
    S. Daniel Meeks and Dean Sutherland, New Orleans, for defendant and appellant Burmont Co. and McMoRan Exploration Co.
    Margot Mazeau, New Orleans, for Pintail Enterprises.
    John K. Hill, Jr., Lafayette, for J & L Steel Corp.
    E. Phelps Gay, New Orleans, for Interve-nor, American Ins. Co.
    Michael Maginnis, New Orleans, for SJF Corp., EES Oil & Gas Associates, Robert Weinstock, Special Coral Drilling Venture.
    Before COVINGTON, LEAR and LANIER, JJ.
   LEAR, Judge.

Plaintiff, Kathleen Dusenbery, filed suit, individually and as natural tutrix of her two minor daughters, for damages for the wrongful death of plaintiffs’ husband and father in an accident on an oil rig. Several defendants were named, among them the partnership and/or joint venture of Bur-mont Company and McMoRan Exploration Co. (herein referred to as “Burmont/McMo-Ran”); McMoRan Exploration Co. (herein referred to as “McMoRan”), Burmont Company (herein referred to as “Burmont”) and J & L Corporation (herein referred to as “J & L”). Third-party petitions were filed by Burmont/McMoRan, Burmont, McMoRan, Hart, Inc. and others, seeking indemnity and/or contribution from J & L.

During the trial on the merits, after the plaintiffs rested, J & L moved for involuntary dismissal (motion for directed verdict) under LSA-C.C.P. art. 1810(B); the court granted that motion. After defendant, Hart, Inc., rested, J & L moved for an involuntary dismissal of the third party claim of Hart, Inc. against J & L under the authority of LSA-C.C.P. art. 1810(B). The court granted that motion, and after argument and discussion with all counsel present, the court further dismissed J & L from all claims of all remaining third party plaintiffs, such dismissal being without prejudice. Three judgments of dismissal were signed accordingly on May 26, 1982. McMoRan, Burmont, and Burmont/McMo-Ran appealed said dismissal without prejudice. J & L then filed this motion to dismiss the appeal.

The judgment in question, a copy of which is attached as Appendix A, specifically states that on the motion of J & L and pursuant to LSA-C.C.P. art. 1810(B), the claims of all parties, save plaintiff Dusen-bery and defendant Hart, against J & L, are dismissed without prejudice. However, the record contains no request by J & L for a directed verdict pursuant to LSA-C.C.P. art. 1810 against appellants. Further, under Article 1810, the court may, after hearing the plaintiff’s case and upon motion of the defendant, render judgment against the plaintiff and dismiss the suit. Because of the nature of a directed verdict, it may not be granted without prejudice. We find that the judgment rendered in favor of J & L and against appellants was not rendered pursuant to LSA-C.C.P. art. 1810.

The testimony in the record shows that appellants agreed to the dismissal of their claims without prejudice. We find that the judgment of dismissal which the court rendered falls under the authority of LSA-C.C.P. arts. 1671 and 1673. A judgment of dismissal without prejudice is a final judgment and is therefore appealable. People of the Living God v. Chantilly Corporation, 251 La. 943, 207 So.2d 752 (1968); Rapides Savings & Loan Association v. Lakeview Development Corporation, 326 So.2d 511 (La.App. 3rd Cir.1976); Lee v. Carruth, 217 So.2d 718 (La.App. 3rd Cir.1969). However, in all instances in which the court has held a dismissal to be appeala-ble, the dismissal was the result of a motion by the defendant or the court and was not acquiesced in by the plaintiff. LSA-C.C.P. art. 2085. In this case, it is clear from the record that the dismissal of appellants’ claims against J & L was voluntary. For this reason, we find that the judgment in question is not appealable.

Hart, Inc. filed a motion in this court to remand the case to the trial court or to stay all proceedings in this court pending a final judgment in the trial court as to plaintiff’s main demand. Since this court ruled in the instant case that a judgment of voluntary dismissal without prejudice is not an ap-pealable judgment and has dismissed this appeal, the motion by Hart, Inc. is also dismissed.

All costs on appeal are to be shared by appellants, Burmont/McMoRan, Burmont and McMoRan.

MOTION TO DISMISS APPEAL GRANTED

MOTION TO REMAND OR STAY DENIED.

LANIER, J., concurs in the result.

APPENDIX A

JUDGMENT

On motion of defendant, J & L STEEL, INC. (J & L STEEL CORPORATION), under Article 1810(b) of the Louisiana Code of Civil Procedure, and the law and the evidence being in favor thereof;

IT IS ORDERED, ADJUDGED AND DECREED that all claims in this matter against defendant J & L STEEL (J & L STEEL CORPORATION) are hereby dismissed without prejudice, save the claims of plaintiff Dusenbery and defendant Hart, Inc. against J & L STEEL, which have been previously dismissed with prejudice.

JUDGMENT READ, RENDERED AND SIGNED at Houma, Louisiana, on this 26th day of May, 1982.

/s/ Cleveland J. Marcel. Sr.

District Judge

APPENDIX B

NO. 82 CA 0680

EXCERPT FROM TRANSCRIPT OF TESTIMONY — P. 1539, Lines 11-29

MR. MEEKS: Your Honor, there was one thing. J & L had brought their motion for an involuntary dismissal on behalf of, I think, Burmont and McMoRan is who you — and the joint venture of Bur-mont-McMoRan, we will agree to a dismissal without prejudice to our third party demand against J & L Steel, Inc., corporation or supply division or whatever they are.

THE COURT: Let the minutes so reflect. That leaves only Huber with the—

MR. MUSSER: I will be willing to dismiss them without prejudice, subject to the right to reinstitute the proceedings against them if any other testimony comes in that I feel would justify keeping them in.

THE COURT: Of course, when you dismiss without prejudice, you always have that right, do you not?

MR. MEEKS: I hope so.

THE COURT: All right, dismissed without prejudice.

      . Incorrectly named in the original petition as McMoran Corporation.

      . Burmont, McMoRan, Burmont/McMoRan, and J.M. Huber Corporation.

      . See Appendix B attached hereto.


author: COVINGTON, Judge.

text:
    ST. TAMMANY INVESTMENT PROPERTIES, INC. v. Mark P. CAIRNS.
    No. 82 CA 0268.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Howard Fussell, Covington, for plaintiff, appellee.
    Jesse L. Wimberly, III, Mandeville, for defendant, appellant.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This is a suit by the lessor, St. Tammany Investment Properties, Inc., against the lessee, Mark P. Cairns, for monthly rentals allegedly due under a lease agreement and for damages to the leased premises. Prom a judgment in favor of plaintiff for the monthly rentals for a nine month period, plus interest on each payment from its due date, for damages in the amount of $1,000, plus legal interest from judicial demand, for attorney fees in the amount of 20% on the amount awarded, and for all costs of the proceedings, the defendant has suspensively appealed. We affirm.

On April 12, 1979, the defendant, a dentist, leased certain office space in the Professional Building on North Causeway Boulevard in St. Tammany Parish for a term on one year, ending March 31, 1980, at a monthly rental of $878.00. The lease contained an option-to-renew clause.

Just before Christmas, 1979, plaintiff, acting through its agent, Raymond M. Authement, sent to Dr. Cairns a new lease agreement, unsigned by the lessor, to cover the period of time from April 1, 1980 through March 31, 1981. This agreement provided for an increase in the monthly rentals to the sum of $408.00, and included an option to extend the term of the lease for an additional year at a monthly rental of $441.00. Dr. Cairns signed the lease and returned it to the plaintiff in early March, 1980. It was then that Mr. Authement deleted the option clause, executed the lease on behalf of plaintiff, and returned it with a cover letter dated March 6, 1980. In the letter the lessor advised the lessee of the deletion of the option clause and suggested that the lessee contact Mr. Authement if a longer term was preferred. No response was made to the letter, but Dr. Cairns paid the increased monthly rentals for the months of April, May and June, 1980.

The plaintiff first heard (other than the rental payments) from the leasee through his attorneys, who informed the lessor that the tenant was terminating his lease effective June 30,1980. Mr. Authement answered by letter dated June 13, 1980, that while the lessor had no objection to a sublease to a suitable tenant, it held Dr. Cairns responsible for the rent in accordance with the lease agreement. Before the end of June, 1980, Dr. Cairns moved his dental office to Mandeville, Louisiana.

The lessor made an examination of the premises after the dentist moved out, which revealed that the premises were damaged to a certain extent and that the lessees had not restored them to their former condition. After Dr. Cairns refused to respond to the demands of the lessor to pay the rent for the balance of the lease term and to repair the premises, this suit was instituted. After the trial, the court considered that by the doctor’s payment of the increased rent called for in the new lease, he had tacitly accepted the new agreement; so, judgment for the monthly rental and interest as provided for in the lease was rendered in favor of St. Tammany Investment Properties, Inc. We agree.

A similar situation was presented in Montague v. Weil & Bro., 30 La.Ann. 50 (1878), where the defendants were occupying a store as lessees under a written lease for one year. An agreement for a lease on the same premises at a reduced rental for another year was entered into, and it was agreed that the new lease would be reduced to writing. The lessor prepared the lease, which defendants agreed to sign but did not do so. Defendants, however, occupied the premises after the expiration of the old lease and paid one month’s rent at the reduced amount. The defendants then informed the lessor that they were abandoning the property, whereupon, the lessor sued for the amount of rent agreed upon under the new lease agreement. Plaintiff’s suit was maintained, and plaintiff was allowed to recover the rent due under the new lease.

In Montague, the Court stated (30 La. Ann. at 53):

The intention of the parties here nowhere appears to be to make the existence of the lease depend upon its formal confection, and the signing. On the contrary the payment of the November rent under that lease is evidence that they regarded it as complete, for if the store was held under the old lease, a hundred dollars should have been paid instead of seventy-five. The defendants, both by words and conduct, induced the plaintiffs to believe that they regarded the new lease as binding, and complete, and it is a sound principle of law, as well as of morals, that where one by his words or conduct, wil-fully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.

See also Comment, The Louisiana Law of Lease, 39 Tul.L.Rev. 798, 804 (1965).

The trial court also awarded the plaintiff damages in the amount of $1,000.00. In making this award, the trial judge observed:

The evidence also indicates that alterations were made to the building by Dr. Cairns and that substantial repairs are necessary to get the building back to its original condition. The testimony indicates that the necessary repairs will cost $1500.00. The evidence indicates that some of the repairs are necessitated by the condition in which the building was left by a former tenant. It would appear that the former tenant moved out leaving some holes in the exterior walls, and that only a nominal amount will be required to plug the holes. There is no clear evidence as to how much should be charged the former tenant. In any event, it seems clear that the former tenant’s responsibility could not exceed the sum of $500.00. Accordingly, the Court will grant judgment in favor of the plaintiff and against Dr. Cairns in the amount of $1,000.00 to compensate plaintiff for restoration expenses.

The record supports the lower court’s fixing of damages under the circumstances of this case. Speirer v. McIntosh, 342 So.2d 238 (La.App. 4th Cir.1977); Buchanan v. Daspit, 245 So.2d 506 (La.App. 3rd Cir.1971). We find no abuse of the considerable discretion in the assessment of damages allowed to the trier of fact in the case at bar.

For the reasons assigned, we affirm the judgment of the district court at appellant’s costs.

AFFIRMED.

      . The evidence in the present case does not establish the “reconducted lease” of Governor Claiborne Apartments, Inc. v. Attaldo, 256 La. 218, 235 So.2d 574 (1970), and its progeny. The relationship between the parties before the bar is contractual, not quasi-contractual; a new lease contract was agreed to, the rent and ee premises having definitely been consented to and agreed upon by both parties. The “lessee” did not merely continue in possession so that the “lessor” need have resort to the quasi-contractual theory of recovery, i.e. the doctrine of unjust enrichment, espoused by Garner v. Perrin, 403 So.2d 814 (La.App. 2nd Cir.1981).

      . Interest and attorney fees were awarded pursuant to the lease agreement.