text:
    STATE of Louisiana ex rel., Kenneth A. TUBBS v. STATE of Louisiana.
    No. 80-KH-1692.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Kenneth A. Tubbs, applying for remedial writ. Parish of Caddo. No. 108-054.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. James E. BERRY v. STATE of Louisiana.
    No. 80-KH-2600.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re James E. Berry, applying for remedial writs. Parish of Orleans. City Court.

Denied.


text:
    Mildred Simon LINN v. Joseph Ralph LINN, Jr.
    No. 80-C-2625.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Joseph Ralph Linn, Jr., applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 11280.

Denied.


text:
    STATE of Louisiana v. John W. ANTONOWICZ.
    No. 80-K-2667.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re John W. Antonowicz, applying for writs of certiorari, prohibition, mandamus, and for stay order. Parish of Vernon. No. 30832.

Denied.


text:
    STATE of Louisiana v. Reginald WILSON.
    No. 80-K-2461.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Reginald Wilson, applying for writs of certiorari, prohibition, mandamus, and a stay order. Parish of Orleans. No. 278-598.

Denied. Stay order recalled.

CALOGERO, J., would grant the writ.


text:
    The PEOPLES NATIONAL BANK OF NEW IBERIA, Louisiana v. TRIPLE SEC, INC. et al.
    No. 80-C-2579.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re James W. de Gravelle, applying for remedial or supervisory writs of certiorari, review, mandamus and/or prohibition. Parish of Iberia. No. 42762.

Denied.


text:
    STATE of Louisiana ex rel. Irvin E. WILLIAMS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary and 24th Judicial District Court, Parish of Jefferson.
    No. 80-KH-2540.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re Irvin E. Williams, applying for writs of habeas corpus and certiorari. Parish of Jefferson. No. 74r-215.

Denied.


text:
    STATE of Louisiana ex rel. David H. NEALY v. T. M. ARMSTEAD.
    No. 80-KH-2507.
    Supreme Court of Louisiana.
    Nov. 21, 1980.
   In re David H. Nealy, applying for remedial writs. Parish of St. Tammany. No. 64343.

Denied.


text:
    STATE of Louisiana, ex rel. Dennis HOLMES v. Frank BLACKBURN, Warden, Louisiana State Penitentiary et al.
    No. 80-KH-2044.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Dennis Holmes, applying for writ of habeas corpus. Parish of Orleans. No. 227-232.

Writ denied.


text:
    STATE of Louisiana ex rel., Dick WILLIAMS v. Charles C. FOTI, Sheriff, Orleans Parish & Attorney General of Louisiana.
    No. 80-KH-2107.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Dick Williams, applying for writ of habeas corpus. Parish of Orleans.

Denied.

CALOGERO and WATSON, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel., Bernard J. MATTHEWS v. Honorable Alvin V. OSER, Judge, Criminal District Court.
    No. 80-KH-2177.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Bernard J. Matthews, applying for remedial writs. Parish of Orleans. No. 272-173.

Denied.


text:
    STATE of Louisiana ex rel., Melvin BOWMAN v. STATE of Louisiana.
    No. 80-KH-2317.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Melvin Bowman, applying for writ of habeas corpus. Parish of Orleans. No. 275-631.

Denied. Relator must apply first to trial court.


text:
    STATE of Louisiana v. Randy E. LINCKS.
    No. 80-K-2364.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re State of Louisiana, through the District Attorney, John M. Mamoulides, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 80-905.

Denied.

CALOGERO, BLANCHE and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Arthur DAVIS.
    No. 80-K-2469.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 276-826.

Writ denied.

MARCUS, BLANCHE, and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Michael Charles THOMPSON v. Judge Carl A. GUIDRY.
    No. 80-KH-2488.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Michael Charles Thompson, applying for remedial writs. Parish of East Baton Rouge. No. 5-78-810.

Denied.


text:
    STATE of Louisiana v. Douglas WILLIAMS.
    No. 80-K-2698.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Douglas Williams, applying for writs of certiorari, prohibition and mandamus, and stay order. Parish of Caddo. No. 116139.

Granted.


text:
    STATE of Louisiana v. Arthur EDWARDS, Jr.
    No. 80-K-2582.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Arthur Edwards, Jr., applying for writs of certiorari, prohibition, and mandamus. Parish of Caddo. No. 114961.

Granted in part and denied in part. Relator is to be paid cost of transcript out of funds available for transcripts for indigent defendants. Otherwise denied.

DIXON, C. J., CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Lucille ALLEN v. Warden Johnnie JONES, Louisiana Correctional Institute, St. Gabriel.
    No. 65737.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Lucille Allen, applying for writ of habeas corpus. Parish of Orleans. No. 265-590.

Writ denied as to relator’s claims of an unkept plea bargain, the same being without merit. Writ denied as to relator’s claim that the prior convictions used in relator’s multiple bill conviction were unconstitutionally obtained as that claim must first be presented to the District Court.


text:
    STATE of Louisiana ex rel., Dennis JARROW v. Judge Rudolph BECKER, III & Frank Blackburn, Warden et al.
    No. 80-K-1445.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Dennis Jarrow, applying for remedial writ. Parish of Orleans. No. 246-288.

Denied.


text:
    STATE of Louisiana ex rel., Charles E. BELGARD v. Alfred A. MANSOUR, Dist. Judge.
    No. 80-KH-1618.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Charles E. Belgard, applying for writs of mandamus, habeas corpus, and cer-tiorari. Parish of Rapides. No. 170651.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel., Mitchell MOORE v. Judge Frank SHEA, Section G Orleans Criminal District Court.
    No. 80-KH-1624.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Mitchell Moore, applying for writ of mandamus. Parish of Orleans. No. 252-943.

Denied.


text:
    STATE of Louisiana ex rel. Irvin NOIL v. Judge Frank MARULLO, Orleans Parish Criminal Court.
    No. 80-KH-1779.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Irvin Noil, applying for remedial writs. Parish of Orleans. No. 222-267.

Denied.


text:
    STATE of Louisiana ex rel. Melvin COOKE v. Judge Frank A. MARULLO, Orleans Criminal District Court.
    No. 80-KH-1914.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Melvin Cooke, applying for remedial writs. Parish of Orleans. No. 256-402.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Edward J. SCOTT v. Warden Ross MAGGIO, Jr., Hunt Correctional Center.
    No. 80-KH-2003.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Edward J. Scott, applying for writs of prohibition, mandamus and habeas corpus. Parish of Orleans. No. 218317.

Denied.

DIXON, C. J., CALOGERO and DENNIS, JJ., would grant evidentiary hearing.


text:
    STATE of Louisiana ex rel. Ronald AILSWORTH v. STATE of Louisiana.
    No. 80-KH-2008.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Ronald Ailsworth, applying for remedial writs. Parish of Orleans. No. 273-282.

Writ denied. Relator must first apply to the District Court.


text:
    STATE of Louisiana v. Ricky FARBE.
    No. 80-K-2464.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Ricky Farbe, applying for writs of certiorari, prohibition, and mandamus. Parish of Avoyelles.

Granted.


text:
    STATE of Louisiana ex rel., Juniser JONES v. CLERK of COURT, PARISH of ORLEANS CRIMINAL DISTRICT COURT.
    No. 80-KH-2541.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Juniser Jones, applying for writ of mandamus. Parish of Orleans. No. 259-839.

Granted. Relator is entitled to Boykin transcript.


text:
    STATE of Louisiana v. Philip Earl BRIDGES.
    No. 80-KH-2566.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Philip Earl Bridges, applying for remedial writ. Parish of Terrebonne.

Granted. Motion transferred to District Court for action.


text:
    STATE of Louisiana ex rel. Norman CARROLL v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2382.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Norman Carroll, applying for remedial writs. Parish of Jefferson. Nos. 741643, 741704 and 75245.

Granted. Evidentiary hearing ordered.

MARCUS, BLANCHE and WATSON, JJ., dissent.


text:
    Vinell LANIEUX v. IBERVILLE SERVICES, INC., and United States Fidelity and Guaranty Company.
    No. 80-C-2586.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Vinell Lanieux, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 391 So.2d 1282.

Writ denied.

DIXON, C. J., would grant the writ.


text:
    Willie J. MARSHALL v. William E. BIGGS, Jr. et al.
    No. 80-C-2593.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Willie J. Marshall, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 392 So.2d 111.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    Willie F. HOBGOOD et ux. v. FIDELITY & CASUALTY INSURANCE COMPANY et al.
    No. 80-C-2591.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Fidelity & Casualty Insurance Company, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Washington. 392 So.2d 116.

Denied.


text:
    Mary McCRAINE v. HONDO BOATS, INCORPORATED and Anchor Marine, Incorporated.
    No. 80-C-2577.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Mary McCraine, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 392 So.2d 161.

Granted.


text:
    Anthony V. SIRONE v. SOUTH CENTRAL BELL TELEPHONE COMPANY et al. SOUTH CENTRAL BELL TELEPHONE COMPANY v. Anthony V. SIRONE.
    No. 80-C-2578.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Anthony V. Sirone, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipa-hoa. 392 So.2d 192.

Writ denied.


text:
    Jim MOBLEY v. Lindle M. MOBLEY.
    No. 80-C-2756.
    Supreme Court of Louisiana.
    Dec. 5, 1980.
   In re Lindle D. Mobley, applying for remedial writs and stay order. Parish of East Baton Rouge. Family Court, No. 52014.

Writ denied.

DIXON, C. J., would grant the writ.


text:
    STATE of Louisiana ex rel. Ken SEAVEY a/k/a Randy Tucker v. Judge Frank A. MARULLO, State of Louisiana.
    No. 80-KH-2221.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Ken Seavey, applying for writ of certiorari. Parish of Orleans. No. 268-919.

Granted. Hearing on motion for new trial ordered provided one has not been held.


text:
    Gerald James BORDELON v. LOUISIANA DEPARTMENT OF CORRECTIONS; C. Paul Phelps, Secretary, Department of Corrections; Larry E. Roberts, Superintendent, Louisiana Training Institute-East Baton Rouge; and Mack Delaphosse.
    No. 80-C-2800.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Gerald James Bordelon, applying for supervisory writs. Parish of East Baton Rouge. Nineteenth Judicial District. No. 239-559, Div. L.

Granted.


text:
    STATE of Louisiana v. Clyde DUFOUR.
    No. 80-K-2660.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Clyde Dufour, applying for writs of certiorari, prohibition, and mandamus.

Granted. The conviction is reversed and the sentence is set aside.


text:
    STATE of Louisiana ex rel. Ken SEAVEY a/k/a Randy Tucker v. Honorable Frank MARULLO, Judge, Criminal District Court, Parish of Orleans.
    No. 80-KH-2688.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Ken Seavey, applying for remedial writ. Parish of Orleans. No. 268-919.

Granted. O.I.D.P. is ordered to provide relator access to transcript.


text:
    BATON ROUGE COCA-COLA BOTTLING COMPANY, LTD. v. GENERAL TRUCK DRIVERS, WAREHOUSEMEN, AND HELPERS LOCAL UNION NO. 5, Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
    No. 80-C-2700.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re General Truck Drivers, Warehouse-men & Helpers Local Union No. 5, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 14041.

Granted.


text:
    STATE of Louisiana v. Loney MORRIS.
    No. 80-K-2731.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Loney Morris, applying for writ of certiorari, or review. Parish of Orleans. No. 278-187.

Granted; ruling set aside; defendant should have been granted a continuance; new hearing ordered.

DIXON, C. J., and BLANCHE, J., dissent.


text:
    STATE of Louisiana v. Ralph Douglas McCOMMONS.
    No. 80-K-2754.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re State of Louisiana, through the District Attorney, James Lynn Davis, applying for writs of certiorari, mandamus and prohibition. Parish of Sabine. No. 27723.

Granted.


text:
    STATE of Louisiana ex rel. Otis Lee WHITLEY v. Frank BLACKBURN.
    No. 80-K-2763.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re Otis Lee Whitley, applying for writ of certiorari. Parish of Madison. No. 29253.

Granted. The ruling of the trial judge is reversed. The defendant is allowed to call the juror to announce what his vote was in the trial.

DIXON, C. J., would grant the writ and bring up regularly.


text:
    STATE of Louisiana v. Eddie MITCHELL
    No. 80-K-2752.
    Supreme Court of Louisiana.
    Dec. 15, 1980.
   In re State of Louisiana, through the District Attorney, Leonard Knapp, applying for writs of certiorari, prohibition and mandamus. Parish of Calcasieu. No. 3383-80.

Denied on showing made.

MARCUS, J., concurs in the denial. See, State v. Dyer, 388 So.2d 374 (La.1980).


text:
    STATE of Louisiana v. Lois MORSE.
    No. 80-K-2925.
    Supreme Court of Louisiana.
    Dec. 19, 1980.
   In re Lois Morse, applying for writs of certiorari, prohibition and mandamus. Parish of Tangipahoa.

Writ granted. Trial court’s recommitment to East Feliciana Forensic Facility is set aside. Trial judge is ordered to set bail.

LEMMON, J., concurs. The trial judge improperly used a criminal proceeding to order a civil commitment.


text:
    DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. J. Al AMISS, Sheriff, East Baton Rouge Parish.
    No. 80-C-2947.
    Supreme Court of Louisiana.
    Dec. 22, 1980.
   In re Department of Transportation and Development, applying for writs of prohibition, mandamus and stay order. Parish of East Baton Rouge. No. 241-524.

Denied.


text:
    STATE of Louisiana v. Peter and Dominick IMBORNONE.
    No. 80-K-2893.
    Supreme Court of Louisiana.
    Dec. 23, 1980.
   In re Peter and Dominick Imbornone, applying for writs of certiorari, mandamus and prohibition. Parish of Orleans. 275-369.

Denied.


author: LEAR, Judge.

text:
    Irvin SCOTT v. TERREBONNE LUMBER and United Rent-All, Inc. et al. Irvin SCOTT v. R. J. SHAW CONSTRUCTION COMPANY and United States Fidelity & Guaranty Company.
    Nos. 13599, 13600.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Gordon Hackman, Boutte, for plaintiff and appellant.
    Robert E. Peyton, New Orleans, for defendant and appellee United Rent-All, Inc.
    Edmund McCollam, Houma, for defendant and appellee Terrebonne Lumber & Supply Co.
    Lloyd T. Bourgeois, Thibodaux, for defendants and appellees.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Defendants-appellees, Terrebonne Lumber Company and Hill-Behan Lumber Company, have filed in these proceedings motions to dismiss the appeal filed by plaintiff-appellant, Irvin Scott, for failure of appellant to file its brief timely. Briefly, the record reflects the following transactions and dates:

Record lodged April 11,1980
Appellant’s brief due May 6,1980
Appellant’s brief received August 18,1980
Appellant’s brief returned August 18,1980
Submission of case to panel August 20,1980
Appellant’s brief refiled August 21,1980

An examination of the record shows that appellant’s brief was first received timely by the clerk’s office and stamped August 18, 1980, two days prior to the time argument was due thereon before the three judge panel.

The clerk, however, noting that a syllabus and certificate had been omitted, returned the brief without filing. Thereafter, appellant added the required portions and returned the brief which was received on August 21, 1980, one day afterwards.

We have reviewed the motions to dismiss and the record herein. We do not believe under the particular circumstances of this case that appellant should have his cause dismissed, as certainly the letter and spirit of the law as well as the policy of this court favor maintaining the right of appeal.

Appellees’ motions to dismiss are, therefore, denied.

DENIED.

      . UNIFORM RULES — COURTS OF APPEAL
      Rule VII, Section 5. The court may, ex pro-prio motu:
      (b) Consider abandoned and dismiss the appeal in any case in which the appellant has neither appeared nor filed a brief prior to the time the case is called for oral argument, or the time the case is submitted without oral argument on the docket of the court.
      By “appearance” is meant personal appearance in open court, or the filing of a written instrument negating any intent to abandon the appeal, or the filing of a written pleading; [and] (Emphasis ours.)

      . UNIFORM RULES — COURTS OF APPEAL
      Rule IX, Section 7:
      In all circuits, briefs shall be accompanied by a certificate to the effect that a copy thereof has been delivered or mailed to opposing counsel or the opposing litigant(s) if not represented by counsel.


author: MARVIN, Judge.

text:
    TRUNKLINE GAS COMPANY v. Alfred RAWLS, Jr. and John D. Smith.
    No. 14348.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 1980.
    On Rehearing March 23, 1981.

      Liskow & Lewis by John M. Wilson, New Orleans and Robert T. Jorden, Lafayette, for appellant.
    McIntosh, Fox & Lancaster by George F. Fox, Jr., Lake Providence, Glen W. Strong, Oak Grove, for Alfred Rawls, Jr.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

In this action under LRS 19:2(7) to expropriate underground rights for the storage of natural gas, the plaintiff gas company appeals, seeking to reduce the amount awarded and to avoid costs and attorney fees which were assessed against plaintiff. We amend and affirm.

The issue is whether under the circumstances of this particular case the award is an abuse of discretion by the trial court. LRS 19:8 provides for attorney fees if the award exceeds the highest amount offered the landowner by the expropriator.

Plaintiff sought to expropriate an essentially depleted gas reservoir known as the Monroe Gas Rock formation underlying defendant landowner’s 40 acres. The gas fields in the area of defendant’s property (the Epps field and the South Epps field) had commercially produced gas since about 1928 until 1973. Defendant’s property, however, was not productive of gas even though it overlaid the reservoir. The reservoir still contained some gas, called residual gas, which was not capable of being commercially produced when production ceased and when the expropriation commenced. Expert testimony differed as to whether gas could have been produced at any time from the reservoir underlying defendant’s 40 acres.

Plaintiff offered the landowner $2,785. The trial court awarded $21,568. The trial court concluded that there was only a “remote possibility” that commercially producible gas was in the reservoir underlying defendant’s property, but held that it was proper to give some consideration to that possibility for the purposes of valuing the underground strata.

The lower court also determined that it was proper to consider the effect of the completed underground storage facility on oil and gas exploration which might occur at greater depths.

Defendant’s appraiser considered these matters, the particular adaptability (suitability) of the site for underground storage, and the several factors and the award which were stated in the case of Mid-Louisiana Gas Company v. Sanchez, 280 So.2d 406 (La.App. 4th Cir. 1973). The trial court accepted generally the approach by the appraiser for the defendant and declined to accept the alleged “market value” approach used by plaintiff’s appraiser. The trial court gave no appreciable weight to plaintiff’s appraisal because that appraiser’s alleged comparable sales included only those sales which plaintiff itself had consummated in the area under the threat of expropriation, because no consideration was given to the residual gas in the reservoir, and because no consideration was given to the special suitability of the property.

Defendant’s appraiser adjusted the award in the Sanchez case to account for inflation and other variables or differences and determined a per acre value for the right taken here. The trial court found the field in Sanchez to be broadly comparable to the fields in the area of defendant’s property and concluded that the several considerations made by defendant’s appraiser were the only reliable way to arrive at a value. This was not reversible error.

In Sanchez, consideration was given to the value of the residual gas in the reservoir, to the particular adaptability of the property, and to the broad comparison with the value paid for the right in other fields remote from Sanchez where underground rights had been sold for storage purposes. The trial court did not abuse its discretion in determining the amount of the award. The determination of what amount will compensate a landowner to the full extent of his loss because of expropriation of a property right must be made on the basis of the facts of each case and in accord with the uniqueness of the thing taken. LRS 19:9; Art. 1, § 4, La.Constn. See State, Department of Highways v. Allen, 243 So.2d 337, 341 (La.App. 4th Cir. 1971).

In answer to the appeal, defendant seeks to increase the award of attorney fees from $2,500 to $12,525, to increase some of the expert witness fees from $1,030 to $1,330, and to amend the judgment to have interest run from judicial demand instead of from the date of the judgment.

The trial court in its initial reasons for judgment adopted an annual payment formula for the determination of compensation. In the initial reasons for judgment the trial court stated that 25 percent attorney fees would be awarded defendant, but applied the 25 percent to the amount to be paid for the first payment. In amended reasons for judgment, the trial judge correctly determined that the compensation should be paid at one time but did not change the amount of the award of attorney fees. By analogy see LRS 48:453(E). Reasonable attorney fees should have been awarded. LRS 19:8. See City of Shreveport v. Pupillo, 390 So.2d 941 (La.App. 2d Cir. 1980). Considering this record and the difference in the amount offered and the amount awarded as compensation, we shall increase the award of attorney fees from $2,500 to $6,200.

We find no abuse of discretion in the fixing of the fees for expert witnesses. In cases of expropriation by entities such as plaintiff, the property is not taken until a judgment is signed and interest does not begin to run on the amount of the judgment from the date of demand, but runs from the date of the judgment or from the date the plaintiff appropriates the property to its use, whichever date is sooner. See Greater Baton Rouge Airport v. Hays, 339 So.2d 431 (La.App. 1st Cir. 1976), writ denied. There is no showing of an earlier appropriation and we find no error in the judgment fixing interest from the date of the judgment.

Judgment is amended to increase the award of attorney fees from $2,500 to $6,200, and as amended, and at the cost of appellant, judgment is

AFFIRMED.

PER CURIAM.

We granted a rehearing to enable the court en banc to consider Trunkline’s contentions that we erred in affirming the trial court’s determination of just compensation for the right expropriated.

We have again reviewed the record and conclude that the views expressed in our opinion on the original hearing are correct and we adopt it as our opinion on rehearing.


author: SWIFT, Judge. PER CURIAM.

text:
    Denver F. WENDORF et al., Plaintiff-Appellant, v. Earl CORLEY et al., Defendant-Appellee.
    No. 7931.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 9, 1981.

      Gist, Methvin, Hughes & Munsterman, Dorwan G. Yizzier, Alexandria, for plaintiff-appellant.
    Charles B. Bice, Winnfield, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and SWIFT, JJ.
   SWIFT, Judge.

This case and our docket No. 7932, entitled “ Wendorf Realty Company, Inc. v. Earl Corley, et al.”, 394 So.2d 1256, have been consolidated for trial and appeal as they arose from a trespass by defendants, Earl Corley and James Delaney, in building a fence on the property of plaintiff, Wendorf Realty Co., Inc. (Wendorf Realty), without its consent. From a judgment denying their claims for damages, the plaintiffs have appealed.

Wendorf Realty owns land in the Northwest Quarter of Section 34, Township 6 North, Range 1 West, in Grant Parish, Louisiana. The northern boundary of Wendorf Realty’s property is the southern boundary of property owned by defendant, Earl Cor-ley. Their common boundary is also the southern boundary of the North Half of the Northwest quarter of Section 34.

A public road referred to as Hooper Road proceeds generally in a northeast to southwest direction across the North Half of the Northwest Quarter of Section 34. It makes a turn more to the west near the southern boundary of the North Half of the Northwest Quarter and gradually crosses into the South Half thereof.

During 1974 some of Corley’s cattle went through an old fence and grazed on the cotton crop on Wendorf Realty’s land. Mr. Wendorf, the principal shareholder in Wen-dorf Realty, complained to Corley. In response to these complaints in February, 1975, the defendants constructed a fence to enclose Corley’s land. The fence, which Corley said he believed was on the boundary line between his property and that of Wendorf Realty, was erected south of Hooper Road after its westerly turn near the southern boundary of said North Half of the Northwest Quarter. It encroached from about four to seventy feet in places on Wendorf Realty’s property. Also, it extended without a gate or “cattle gap” across an old drive to a vacant and ramshackle house situated on Wendorf Realty’s land.

Mssrs. Wendorf and Kemp testified they had agreed to lease 30 acres of the property adjacent to the house for the purpose of raising watermelons. Wendorf Realty was to receive Vt of the profits from the crop and Wendorf and Kemp would split the othe/iths. It was also agreed that Kemp would rent ther s house for $75.00 per month after necessary repairs were made by Wendorf Realty so that Kemp’s family could live therein.

Mr. Wendorf testified that after the fence was constructed he called Corley on the telephone to complain about the fence, but Corley hung up on him. No demand for removal of the fence was ever made. No watermelons were planted on the 30 acres.

On February 18, 1976, Wendorf and Kemp filed suit against Earl Corley and James Delaney for $18,000.00 damages allegedly sustained due to the loss of the watermelon crop. Wendorf Realty also filed a separate suit against the same two defendants claiming the following damages by reason of the trespass:

Cost of cattle gap. $ 4,750.00
Cost of installation of cattle
gap. 2,500.00
Loss of Vi of watermelon crop .... 6,000.00
Loss of cotton by virtue of
cattle damage. 12,500.00
Cost of construction of fence
on north property line. 5,050.00
Loss of rent at $75.00 per
month. 900.00
Cost of survey. 400.00
Damages to dog houses as a
result of fire. 2,850.00
Damages to barn as a result
of fire. 1,050.00
TOTAL. $36,000.00

Defendants denied practically all of the allegations of the petitions and pleaded one year prescription as to the claims for cotton damages.

By agreement of the parties and with the court’s consent the matter was converted into a boundary action in addition to the claims for damages. Randolph B. LaCroix, Jr. was appointed to survey the boundaries and fences located between the lands of Wendorf Realty and Earl Corley. All of the parties accepted the completed survey and it was agreed that judgment would be rendered fixing the common boundary as established thereby. It reflects that the fence constructed by the defendants encroached on Wendorf Realty’s property. This portion of the judgment and the order directing the defendants to remove the fence from Wendorf Realty’s land, of course, are not in contest on the appeal. The plaintiffs have abandoned all claims for damages except loss of the watermelon crop and rentals for the house.

The trial judge denied the claim for the watermelon crop stating, “Access to the tract was available at other places. Access could have been easily obtained by plaintiffs’ installing a cattle gap and removing the fence across the entrance or simply installing a ‘Texas gap’ at the entrance. Additionally, such damages are too speculative for the court to rely on as the testimony of the amount of the crop is based on the false assumption that the 30 acres contained well-drained, sandy loam soil. Plaintiffs also failed to mitigate damages by planting the 30 acres in soybeans as was done on the contiguous 600 acres.”

He also denied Wendorf Realty’s claim for the loss of rent, because he found that in order to make the house habitable the landowner would have to spend an amount greatly in excess of the $900.00 allegedly lost.

It is well settled in Louisiana that damages should be awarded for illegal trespass on one’s property, even when committed in good faith and though proof of the amount of the damages actually sustained by the proprietor be uncertain. Layne Louisiana Co. v. Superior Oil Company, 209 La. 1014, 26 So.2d 20 (La.1946); Bihm v. Hirsch, 193 So.2d 865 (La.App. 3 Cir. 1967); Bentley v. Industrial Fire Protection Co., 338 So.2d 1177 (La.App. 2 Cir. 1976); Folds v. Red Arrow Towbar Sales, 378 So.2d 1054 (La. App. 2 Cir. 1979).

In American Employers Insurance Co. v. Schoenfield, 144 So.2d 595 (La.App. 4 Cir. 1962), the court said:

“One injured through trespass or fault of another is entitled to full indemnification for the damages caused thereby, and, where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all the facts and circumstances of the case. LSA-C.C. Art. 1934(3);” [Additional authorities omitted.]

We agree with the trial judge that the proof offered to establish the claimed loss of profits from the watermelon crop was speculative and tenuous. Also, it may be subject to question as to just how serious Mr. Wendorf’s intentions were in regard to cultivating the subject 30 acres in view of his testimony that another lessee was not permitted to grow soybeans thereon after the fence was erected (as was done with the remaining 600 acres of the corporation’s lands) simply because a suit was going to be filed for the trespass. Nevertheless, had the parties actually used the other available accesses while growing watermelons they necessarily would have suffered some inconvenience as these were further away than the entrance which was closed by defendants’ fence. Under the circumstances, we believe the trial judge was manifestly in error in failing to allow compensation therefor. We will award $700.00 to Messrs. Wendorf and Kemp as the damages caused them by the trespass.

The corporate plaintiff did not suffer any mental anguish as a result of this trespass, but it is entitled to an award for loss of some rental. Benedict v. Lynch, 81 So.2d 91 (La.App. 2 Cir. 1955). As stated, the trial judge rejected this claim based on his finding that the cost of repairing the house was in excess of the alleged lost rentals. It is obvious that extensive repairs were required to make this dilapidated house habitable and the record does not indicate any probability of future rentals after the alleged watermelon crop was harvested from which the amount invested for such repairs could be recouped. However, again we think the trial judge was manifestly in error in not making some award for this item and conclude that Wendorf Realty Company, Inc., was damaged in this respect to the extent of $350.00.

For the foregoing reasons, the judgment of the district court in our docket No. 7931 is affirmed in part and reversed in part and, accordingly, it is ORDERED, ADJUDGED and DECREED that there be judgment in said suit in favor of the plaintiffs, Denver F. Wendorf and Isaac J. Kemp, and against the defendants Earl Corley and James Delaney, in the sum of $700.00 with legal interest thereon from judicial demand until paid and for all costs of the suit, except the expense of the survey, plat and proces verbal of R. B. LaCroix, Registered Land Surveyor, which cost is taxed and assessed in our No. 7932. In all other respects, the judgment is affirmed.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In an application for rehearing plaintiffs-appellants have called our attention to the fact that after trial and before rendition of judgment by the trial court defendant, Earl Corley, died and his surviving spouse and universal legatee, Maudie Lee Delaney Cor-ley, has been duly substituted in his place as a defendant herein. Consequently, the decree heretofore rendered by us in the above numbered and entitled suit must be and is hereby amended to substitute Maudi Lee Delaney Corley as a defendant in the place of the deceased defendant, Earl Corley. In all other respects the judgment rendered by this court in this case shall remain as written.


text:
    WENDORF REALTY COMPANY, INC., Plaintiff-Appellant, v. Earl CORLEY et al., Defendants-Appellees.
    No. 7932.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 1980.
    Rehearing Denied Feb. 9, 1981.
    Gist, Methvin, Hughes & Munsterman, Dorwan G. Vizzier, Alexandria, for plaintiff-appellant.
    Charles B. Bice, Winnfield, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX and SWIFT, JJ.
   SWIFT, Judge.

For the reasons this day assigned in the companion case of Wendorf, et al. v. Corley, et al., 394 So.2d 1252, the judgment of the district court in our No. 7932 is affirmed in part and reversed in part and accordingly, it is ORDERED, ADJUDGED AND DECREED that there be judgment in our No. 7932 in favor of plaintiff, Wendorf Realty, Inc., and against defendants, Earl Corley and James Delaney, in the sum $350.00 with legal interest thereon from judicial demand until paid and for all costs of this suit, except the expense of the survey, plat and proces verbal of R. B. LaCroix, Registered Land Surveyor, which cost is assessed one-half to plaintiff and one-half to defendants. Otherwise, the judgment is affirmed.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In an application for rehearing plaintiffs-appellants have called our attention to the fact that after trial and before rendition of judgment by the trial court defendant, Earl Corley, died and his surviving spouse and universal legatee, Maudie Lee Delaney Cor-ley, has been duly substituted in his place as a defendant herein. Consequently, the decree heretofore rendered by us in the above numbered and entitled suit must be and is hereby amended to substitute Maudie Lee Delaney Corley as a defendant in the place of the deceased defendant, Earl Corley. In all other respects the judgment rendered by this court in this case shall remain as written.


author: GARRISON, Judge.

text:
    MARYLAND CASUALTY COMPANY And Hartford Insurance Company v. Alfred J. SAUNDERS d/b/a Bud’s Broiler & Employers Mutual Liability Insurance Company of Wisconsin.
    No. 11359.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    Rehearing Denied March 16, 1981.

      James S. Rees, III, Murphy & Simon, New Orleans, for plaintiff-appellant Maryland Cas. Co.
    Edmond J. Harris, Rutledge & Associates, Metairie, for plaintiff-appellant Hartford Ins. Co.
    Louis M. Kiefer, Jr. and Richard S. Vale, Metairie, for defendants-appellees.
    Before SAMUEL, CHEHARDY and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the trial court granted in favor of the lessee, Alfred J. Saunders d/b/a Bud’s Broiler, and his insurer, Employers Mutual Liability Insurance Co. of Wisconsin, dismissing the suit of two co-subrogees, Maryland Casualty Co. and Hartford Insurance Group, who are the insurers of the lessor, Michael Hebert. The suit arose out of a fire occurring on October 31, 1976, at the leased premises, 2511 Whitney Avenue in Jefferson Parish.

On appeal, plaintiffs argue that the trial judge erred in failing to apply the doctrine of res ipsa loquitur. We agree.

In Boudreaux v. American Insurance Co., 262 La. 721, 264 So.2d 621 (1972), on rehearing, the eminent civilian scholar and member of the bench of the Louisiana Supreme Court, Justice Tate, reviewed the jurisprudence on the issue of res ipsa loquitur as applied to fire cases:

“Recently in Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151, 155 (1971), we summarized the several judicial formulations of this burden of proof in civil cases and concluded:
‘In describing this burden of proof, the courts sometimes speak of proof to a “reasonable certainty” or to “legal certainty”; or of proof by evidence which is of “greater weight” or “more convincing” than that offered to the contrary; or (in the case of circumstantial evidence) of proof which excludes other reasonable hypotheses than the defendant’s tort with “a fair amount of certainty”. Whatever the descriptive term used, however, proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.’
Further, as we specifically held in Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395 (1963), by this burden of proof, the circumstantial evidence requisite in civil negligence cases need not negate all other possible causes of injury, as the opinions of the previous courts seemed to hold. It suffices if the circumstantial proof excludes other reasonable hypotheses only with a fair amount of certainty, so that it be more probable than not that the harm was caused by the tortious conduct of the defendant. 153 So.2d 396-397.
In this respect, the principle of ‘res ipsa loquitur’ (the thing speaks for itself) sometimes comes into play as a rule of circumstantial evidence, whereby negligence is inferred on the part of a defendant because the facts indicate this to be the more probable cause of injury in the absence of other as-plausible explanation by witnesses found credible6. Pilie v. National Food Stores of Louisiana, 245 La. 276, 158 So.2d 162 (1963); Larkin v. State Farm Mutual Auto Ins. Co., 233 La. 544, 97 So.2d 389 (1957); Malone, Res Ipsa Loquitur and Proof by Inference, 4 La.L.Rev. 70 (1941); Comment, 25 La.L. Rev. 748 (1965). Thus, by this principle where properly applied, the circumstantial evidence indicates that the injury was caused by some negligence on the part of the defendant, without necessarily proving just what negligent act caused the injury.
We noted in Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389, 391 (1957): ‘ * * * the maxim [res ipsa loquitur] means only that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference... The application of the rule does not, therefore, dispense with the necessity that the plaintiff prove negligence, but is simply a step in the process of such proof, permitting the plaintiff, in a proper case, to place in the scales, along with proof of the accident and enough of the attending circumstances to invoke the rule, an inference of negligence.... When all the evidence is in, the question is still whether the preponderance is with the plaintiff.’
Nevertheless, when all the evidence is in and the question is whether, by reason of the res ipsa loquitur rule, the plaintiff has preponderantly proved that the defendant is responsible in tort for his injury, we have in our most recent decision on the issue noted that the real test of applying res ipsa loquitur to be as follows: ‘Do the facts of the controversy suggest negligence of the defendant, rather than some other factors, as the most plausible explanation of the accident?’ Pilie v. National Food Store, 245 La. 276, 158 So.2d 162, 165 (1963). (Italics ours.) On the other hand, application of the principle is defeated if ‘an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonably as one that it was due to his negligence.’ 158 So.2d 165 (Italics ours.) See also Comment, 25 La.L.Rev. 748, 764 (1965). This is simply another formulation of the burden of a plaintiff in a tort action to prove that, more probably than not, his injury was caused by the negligence of the defendant.” (264 So.2d at 635-636). (Emphasis added).

In Boudreaux, both the trial court and the appellate court had held that the plaintiffs had not proved by a preponderance of the evidence that the insured’s negligence was the cause of the decedent’s wrongful death, because of the lack of proof as to what had caused the fire. In reversing, the Supreme Court considered the following facts:

“The fire was spread through half the building in a little more or less than an hour after the restaurant was closed tight for the night. (This indicated it must have burned for some time before it had flared to this extent.) No one other than the insured’s employees is shown to have had access to these premises subsequent to the time the restaurant was closed. Prior to then, the insured’s employees had exclusive control of the kitchen premises in which the fire originated. The kitchen was a large scale commercial enterprise, likely to accumulate hazardous quantities of grease and other highly combustible substances.
If all fire had been extinguished in the kitchen premises when the employees left, the evidence indicates no other cause for the fire’s start: i. e., the conflagration was most reasonably caused by some fire (smouldering grease, or spark, or unextin-guished flame fed by gas from the pilots) left alive in the premises when the employees locked up, for no other cause is even suggested by the evidence. Further, the evidence indicates that, if the extinguishing equipment worked as it should have, the fire could not have started or have spread so rapidly.
We thus conclude that the evidence as a whole proves the most reasonable cause of the fire to have been the defendant’s insured’s negligence in leaving fire alive on his premises, which contained inflammable substances.” (264 So.2d at 637).

In the instant appeal, the following facts are similar to the Boudreaux case:

1. No one other than employees of Bud’s Broiler had access to the kitchen and attic storage areas.
2. The testimony indicated that on the day of the fire, no one other than employees had access to the kitchen area and attic directly above the kitchen area, the general area in which the fire started.
3. The pit and chimney arrangement was given to accumulating “hazardous quantities of grease” which would occasionally begin to burn within the chimney system.

Additionally, the following facts were in evidence:

1. Bud’s Broiler had renovated the premises and installed the chimney-pit arrangement at the time of the renovation. Alfred J. Saunders acted as his own general contractor.
2. The lessor took no active part in the day-to-day operation of the business nor in the renovation of the building.
3. Defendant’s chief witness, Alvin Smith, testified that he saw flames at the intersection of the acoustical ceiling or floor of the attic, and a wall which was a few inches away from and stood parallel to the vertical edge of the pit and chimney arrangement. The chimney protruded through both the accoustical drop ceiling and the roof of the building. The lessee stored paper products in the attic area.

In the instant appeal, there is no other explanation in evidence which would indicate that the accident was not a result of defendant’s negligence with respect to the chimney-pit system. Whether the specific negligent act was part of the construction of the system, failure properly to maintain the systems, improper storage of french-fry boxes or paper products is of no importance as the specific negligent act need not be proven where circumstantial evidence indicates that the injury was caused by some negligence on the part of the defendant.

As between the lessor and the lessee and their respective insurers, the lessor had no active control in the renovation or operation of the business. The defendant was in exclusive control of the agency responsible for the injury and is in a much better position to explain the cause of the injury than the lessor.

Accordingly, we conclude that the trial judge erred in failing to apply the doctrine of res ipsa loquitur. Both parties and their respective insurers stipulated at trial that the amount of damages incurred is $30,254.60, the amount paid under subro-gation by Maryland Casualty Co. and Hartford Insurance Group in equal shares.

For the reasons discussed, the judgment of the trial court is reversed and we render judgment as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of the plaintiff in subrogation, Maryland Casualty Co. and against the defendants, ALFRED J. SAUNDERS d/b/a BUD’S BROILER and EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, in solido, in the amount of FIFTEEN THOUSAND ONE-HUNDRED TWENTY-SEVEN AND 30/100 ($15,127.30) DOLLARS, plus legal interest and costs.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of the plaintiff in subrogation, HARTFORD INSURANCE GROUP, and against the defendants, ALFRED J. SAUNDERS d/b/a BUD’S BROILER and EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, in solido, in the amount of FIFTEEN THOUSAND ONE-HUNDRED TWENTY-SEVEN AND 30/100 ($15,-127.30) DOLLARS, plus legal interest and costs.

REVERSED AND RENDERED.

      . The plaintiff, by way of proffer, attempted to show that the fire began as a result of the ignition of accumulated grease from the heat of the pit, that the burning grease ignited cardboard french fry boxes stored improperly on the grill, and that the burning french fry boxes ignited the adjacent plywood wall. At trial, Theodore Menge, who was not an employee of Bud’s Broiler on the day of the fire, recanted his prior testimony that Smith had told him that the french fry boxes on the back of the grill had caught fire, saying “I’m not sure about that. He said something about the french-fry boxes being by the grill. Not on the back of the grill, but by the grill...” Menge did not recant his prior testimony that Smith had said that he attempted to use a fire extinguisher which did not work, and that the french-fry boxes constituted a hazard. We note that Theodore Menge was hired by Bud’s Broiler on April 1,1978. The plaintiff was unable to show that any french-fry boxes were located on the grill on the day of the fire. The digression in this footnote is made solely for the purpose of indicating that both parties place the point of origin and cause of the fire at the chimney-pit arrangement, if at different points on a vertical line. What the specific cause and specific point of origin are differ according to the evidence presented by the parties, but both parties point to the same general area.


author: LOTTINGER, Judge.

text:
    Moses CELESTINE v. HENRY INDUSTRIES, INC. and Houston General Insurance Company.
    No. 13847.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Charles B. Colvin, Dean A. Sutherland, New Orleans, for defendants and appellants, Houston Gen. Ins. Co. & Henry Industries, Inc.
    David A. Hilleren, New Orleans, for plaintiff and appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a workmen’s compensation case. From a trial court judgment finding the plaintiff totally and permanently disabled and awarding penalties and attorney’s fees for arbitrary and capricious termination of compensation benefits, the defendants appeal.

The issues on appeal are whether the plaintiff is totally and permanently disabled or only partially disabled; whether the defendant arbitrarily and capriciously terminated compensation benefits; and whether La.R.S. 23:1221(3), as interpreted by the trial court, violates the due process clauses of the Louisiana and the United States Constitutions.

The plaintiff, Moses Celestine, a 50-year-old, semi-literate man with a seventh grade education who worked as a diesel mechanic for more than 30 years, brought this compensation suit for injuries incurred on March 22, 1977 when his left leg was run over by a cement truck upon which he was working. As a result of the accident, the plaintiff suffered torn ligaments around the knee and a partially detached meniscus, which is a cartilage cushion between the knee bones. Nonsurgical, conservative treatment resulted in no improvement and the plaintiff was thereafter referred to Dr. Peter H. Rhymes, an orthopedic surgeon. Dr. Rhymes’ non-surgical attempts to heal the knee were also unsuccessful, and on June 6, 1977, Dr. Rhymes performed a medial meniscectomy, which is a removal of the knee cartilage on the inside of the left knee. The plaintiff remained in the hospital for about four days. He was later fitted with a knee brace and began physical therapy-

In his testimony at trial, Dr. Rhymes gave a detailed summary of his treatment of the plaintiff. Although the plaintiff at times showed some signs of improvement, Dr. Rhymes Soon realized that the physical therapy often aggravated the soreness and pain in the plaintiff’s knee. On January 16, 1978, Dr. Rhymes diagnosed chondromala-cia, which is an area of softening of the gristle or articular cartilage of the back of the kneecap. The doctor also noted crepi-tance, a grinding and popping sensation in the knee which causes pain. The doctor said the chondromalacia was causally connected to the trauma. This disease advanced over the course of the next two years.

Dr. Rhymes’ conclusion at trial was that plaintiff could not perform any job which required him to squat, bend, kneel, climb up and down stairs or ladders or walk on uneven ground. These activities would aggravate the plaintiff’s knee problem and cause pain. Plaintiff could not lift more than 20 to 25 pounds. Dr. Rhymes did not think the plaintiff would improve considerably in the future and he felt that the plaintiff was completely disabled from returning to his job as a diesel mechanic. The plaintiff has a 20% functional impairment in his left leg which equals about a 10% impairment of the left lower extremity and a 5% impairment of the total man. Dr. Rhymes said Celestine could work only at jobs which do not involve the physical restrictions he has imposed.

In December of 1979, plaintiff saw an occupational therapist, Barbara Lippert Groening, at the behest of the defendant. Groening conducted a one hour interview with Mr. Celestine and a physical capacities evaluation consisting of 20 broad physical demands which the U. S. Department of Labor utilizes to determine which types of jobs the person being evaluated is physically qualified to perform. From her evaluation, Groening determined that Celestine would not be able to return to work as a diesel mechanic but that he might be able to do some other kind of mechanical work which involved use of hand skills. She suggested, as examples, small engine repairs, laundromat management, locksmith work and possibly work as an attendant at a self service gasoline station. On cross examination, Groening admitted that some of the jobs she suggested, like small engine repair at home, would require Celestine to make modifications on his home and could possibly require retraining. She said Celestine would find difficulty securing employment in the major industries of fishing, farming and oil in the Terrebonne Parish area where Celestine lives, and that any job outside of the home would have to be within about 3 miles of Celestine’s home because of the problems he experiences with his knee when he drives longer than that distance. Any type of job involving lifting objects heavier than 20 to 25 pounds would require help for the lifting. As a self-employed worker, Celestine would also need help for the bookkeeping, Groening testified. Like Dr. Rhymes, Groening testified that Celestine was completely cooperative in the evaluation. She stated further that Celestine and his wife were both interested in the possible jobs that he could handle.

The trial court ruled, with neither written nor oral reasons, that Celestine proved he was totally and permanently disabled within the meaning of La.R.S. 23:1221. He ordered defendants to pay $95.00 per week during the period of disability beginning with the date of termination on May 12, 1979. He also found that the defendant’s termination of workmen’s comp benefits was arbitrary and capricious and he therefore cast the defendants for 12% statutory penalties for delinquent payments as well as attorney’s fees in the amount of $3,000.00.

PERMANENT AND TOTAL DISABILITY

The defendants claim on appeal that the plaintiff failed to show that he was totally and permanently disabled. They claim they showed, through testimony of Dr. Rhymes and two therapists, that plaintiff is able to “engage in any gainful occupation for wages...” La.R.S. 23:1221(2). Defendants concede that the plaintiff is unable to perform the work of a diesel mechanic but they contend that plaintiff can work as a small engine or appliance repair man, a laundromat manager, a self service gasoline station attendant or other jobs which would not require physical exertion on the knee. However, the defendants’ expert evaluators admitted that many, if not all, of the jobs the plaintiff would do would require the plaintiff to be assisted by another person, to make modifications to his house, to be retrained and/or to be in close proximity to his job site.

In a recent case, the Louisiana Supreme Court fully endorsed and adopted the “odd lot” doctrine for the Workmen’s Compensation law of Louisiana. Oster v. Wetzel Printing, Inc., et al., La., 390 So.2d 1318 (1980).

In Oster, the court found that a 61-year-old right handed book binder whose hand was mangled in her employer’s machine, who developed an emotional problem as a result of her injury and who had no formal education past one year of junior high school was totally and permanently disabled because she was an “odd lot” worker. The court noted that while the 1975 amendment to La.R.S. 23:1221(2) substantially changed the previous ease with which a worker could be found to be totally and permanently disabled, the amendment does not require that an employee be “utterly helpless” in order to recover total and permanent disability benefits. In so holding, the court stated:

“In order to determine whether the plaintiff fits within this category of odd-lot workers, he must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factor, that he ‘cannot perform the substantial and material parts of some gainful work or occupation with reasonable ‘continuity.’ [citation omitted] If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd-lot category. An offering of such proof by the plaintiff, therefore, satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with ‘a gainful occupation.’ ”

The court therefore concluded that “the odd-lot doctrine should be employed as the guiding concept in determining permanent total disability.”

The court went on to hold that because of the plaintiff’s severely injured hand, her neurosis, her lack of education and her age, she could not perform services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them did not exist.

In the case at bar, Celestine, through his testimony and that of his physician, proved decisively that he is now at a substantial disadvantage in the competitive labor market. He certainly is incapable of performing the type of work he previously performed. He showed that his lack of education, training and ability to work without the assistance of a helper place him at a substantial disadvantage in the labor market. His age and physical condition are also factors which make him at most a marginal employee. Having so shown, the plaintiff has made out a prima facie case of permanent and total disability as an odd lot worker. Furthermore, the employer and insurer failed to show that some form of suitable work is available to the claimant in the area where he resides. The physical therapist who examined the plaintiff testified that work in the three major industries in the area where the plaintiff resides is not available to him. Jobs that might be available to plaintiff would require him to either be retrained or would require him to obtain the assistance of at least one other person to perform them. Any job plaintiff obtains would also have to be in close proximity to his residence because of his inability to drive for long distances. We hold, therefore, that the plaintiff is an odd lot worker and is entitled to total and permanent disability benefits. The trial court’s finding in this regard will be affirmed.

PENALTIES AND ATTORNEY’S FEES

The defendants claim they were not arbitrary and capricious in terminating compensation benefits because their experts had determined that the plaintiff was capable of engaging in some gainful occupation for wages. The defendants contend they were acting prudently by seeking judicial resolution of the issue of whether plaintiff could engage in any gainful employment. We find no merit in this specification. Although the defendants claim that at the time of termination they “knew” that the plaintiff could not only return to some gainful employment but to an employment to which he might earn wages equal to or in excess of those in his prior employment, we find no justification for this in the record. There is simply nothing in the record to show that plaintiff’s condition changed appreciably from the time comp benefits began until the time the benefits were terminated. The evidence shows the contrary— that plaintiff’s condition had not changed.

The trial court judgment awarding penalties and attorney’s fees will be affirmed.

THE CONSTITUTIONAL ISSUE

As a last specification of error, the defendants claim that La.R.S. 23:1221(3) which deals with partial disability is unconstitutional because it violates the constitutional guarantee of substantive due process. This constitutional argument was neither pleaded nor mentioned at the trial level and we will not delve further into it on appeal. As a general rule, an appellate court will not decide a constitutional question which has not been raised at trial. Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1979). This rule is applicable in the case at bar.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed in all respects. The defendants will pay the costs of this appeal.

AFFIRMED.


text:
    CAPITOL CITY LEASING CORPORATION v. Sidney D. HILL, d/b/a S. D. Hill Logging Contractor, et al.
    No. 13932.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Andrew J. Bennett, Jr., Baton Rouge, counsel for Capitol City Leasing.
    Michael R. Connelly, Baton Rouge, counsel for Minton Equipment Co.
    Michael Lee, Livingston, counsel for Sidney Hill d/b/a S. D. Hill Logging Contractors et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by the lessor of two log skidders to collect unpaid rentals from his lessee. The lessee reconvened to have the lease set aside and to recoup damages allegedly resulting from the numerous vices and defects in the skidders. Both lessor and lessee filed third party demands against the seller of the skidders.

The trial court rendered judgment in favor of the lessee, Sidney D. Hill, doing business as S. D. Hill Logging Contractor, and against the lessor, Capitol City Leasing Corporation, cancelling both lease agreements and restoring to Hill $5,020.80 which represented the rentals paid on the two log skidders. The trial judge further awarded attorney’s fees in the amount of $3,000.00 to Hill. Judgment in favor of Capitol City against the seller of the skidders, Minton Equipment Company, was also rendered. That judgment rescinded the sales of the skidders and ordered return of the purchase price in the amount of $32,960.00. Minton was also ordered to reimburse the lessor for all sums the lessor had to pay to Hill, plus the sum of $5,110.18 representing costs of sale and repair and the sum of $3,000.00 for attorney’s fees for the lessor. Minton was given a credit in the amount of $16,000.00 which was the price the lessor received at a public auction of the two log skidders. The demands of the lessor and the seller against the lessee were dismissed, as were the demands of the lessee against the seller.

From these various judgments, the lessor and seller bring these appeals, and the lessee has filed a protective appeal.

FACTS

On December 7, 1976, Sidney Hill leased two used Bombardier log skidders from Capitol City Leasing Corporation for a 24-month term with a rental of $836.80 per month for each skidder. Hill had previously obtained the skidders from Minton Equipment Company, Inc. for a trial period. Unable to obtain the proper financing to purchase the equipment himself, Hill contacted Capitol City in an attempt to arrange financing. V. W. Williamson, Capitol City’s vice president, agreed to purchase the two skidders from Minton Equipment. Hill, in turn, agreed to lease the skidders from Capitol City for the above quoted rent. Capitol City paid Minton $16,905.00 for each skidder. There was no option to purchase under the lease.

Each lease agreement contains a waiver of warranty on the back page which reads as follows:

WARRANTIES. Lessor will request the supplier to authorize Lessee to enforce in its own name all warranties, agreements or representations, if any, which may be made by the supplier to Lessee or Lessor, but Lessor itself makes no express or implied warranties as to any matter whatsoever, including, without limitation, the condition of equipment, its merchantability or its fitness for any particular purpose. No defect or unfitness of the equipment shall relieve Lessee of the obligation to pay rent or of any other obligation under this lease.”

On the front page of each lease agreement, printed in block letters, is the phrase: “THE TERMS AND CONDITIONS SET FORTH ON THE REVERSE SIDE OF THIS PAGE ARE A PART OF THIS LEASE.”

During the negotiation for the lease of the skidders the lessor made clear to the lessee, and all parties so testified, that the lessor would not warrant the used skidders in any manner. However, the lessor verbally told the lessee that all warranty rights would flow from the seller of the equipment to the lessee. The testimony at trial indicates that there was an express warranty running from the seller to the lessee for a thirty-day period following confection of the leases. There was no waiver of the seller’s implied warranty of fitness. La. C.C. art. 2476.

Almost from the time he began using the skidders, Hill experienced numerous problems with them. Although both skidders had been rebuilt by Minton prior to their sale to Capitol and lease to Hill, the machines experienced steering problems, wench problems, problems with the chain coming off of the wench pulley, problems with the universal joint in the drive shaft breaking, and numerous other problems rendering the skidders unfit for the logging business. Minton Equipment made a number of repairs to the machines during the 30-day express warranty period and continued to make repairs thereafter amounting to the sum of $2,250.69, which Minton is presently seeking against Hill.

Around March or April of 1977, Hill asked Capitol City if it would take the equipment back, but Capitol City refused. Williamson, vice president of Capitol City, testified that he had bought the equipment strictly for Hill’s use and that he had no use for two used log skidders. Williamson said he agreed, however, for Hill to take the equipment back to Minton with the understanding that the rental payments would remain due and owing under the lease contract. Having become frustrated with the constant breakdown of the machines, Hill had Minton Equipment take the machines to its yard in Alexandria, Louisiana in the late spring of 1977, with the understanding that Minton would attempt to sell the skid-ders.

Capitol City filed suit to accelerate the rentals under the lease in June, 1977. Some 15 months later, while the suit was pending, Capitol City obtained the two skidders from Minton and sold them at a public auction on August 20, 1978. It received $8,000.00 for each skidder for a total of $16,000.00. Hill was not notified of the sale of the skidders until after the sale.

THE TRIAL COURT’S DECISION

This suit came on for trial in November, 1978. After hearing the testimony and viewing the evidence, the trial court found as a fact that Minton Equipment had rebuilt the skidders prior to the dates of sale, that there was no evidence that the skid-ders were improperly used or improperly maintained by Hill, that Minton’s numerous repair attempts were insufficient, and that the skidders contained such vices and defects as to make them unfit for the purposes for which they were sold to Capitol City Leasing and leased to Hill. Of particular pertinence to this appeal, the trial court found that there was no “deliberate informed waiver of the lessors [sic] implied warranty in favor of Hill as accorded by Louisiana law.” See La.C.C. arts. 2693-2695. Although the lease forms contained a waiver of warranty on the reverse side, the trial judge found that Capitol never specifically brought the warranty waiver to Hill’s attention even though Capitol’s representative had told Hill that the only warranty would come from the seller. Finding no waiver of warranty, the trial court ordered a cancellation of the leases and a return of the rentals in the amount of $5,020.80 because he found both skidders unfit for the leased purposes. Because there was no contract of sale from Minton to Hill, and therefore no privity of contract, the court disallowed Hill’s action for rescission against Minton. As between Capitol and Minton, the trial court found that there was no waiver of warranty and inasmuch as the skidders were unsuitable for their intended purposes, he ordered a rescission of the sales based on redhibitory defects. The court ordered Minton to reimburse Capitol for the sums Capitol had to pay to Hill, plus the costs of repairs and repainting the machines for resale in the amount of $2,204.02, plus interest expense of $2,906.16, attorney’s fees of $3,000.00 and all costs, subject to a credit of $16,000.00 which was the amount obtained for the skidders at public auction.

SPECIFICATIONS OF ERRORS

Minton argues on appeal that the trial court erred in allowing Capitol City to maintain a redhibition action without proof that a tender of the equipment for return of the purchase price had been made; in holding that Capitol City had carried its burden of proof as to redhibitory defects; in awarding damages and attorney’s fees against Minton; and in denying Minton’s reconventional demand against Hill. Capitol City argues that the trial court erred in holding that the waiver of warranty in the lease was ineffective; in awarding attorney’s fees to Hill against Capitol City; and in awarding a return to Hill of the rentals paid to Capitol City. In his protective appeal, Hill claims the trial court erred in dismissing his action for damages and attorney’s fees against Minton.

WAIVER OF LESSOR’S WARRANTY

In Louisiana National Leasing Corporation v. A. D. F. Service, Inc., 377 So.2d 92 (La.1979), the Louisiana Supreme Court was faced with interpreting a waiver of warranty identical to that found in the case at bar. The court noted that under Article 1764 of the Civil Code, implied warranties are not essential elements of contracts and they may be waived without destroying the character or effect of the contract. The court also stated that one must presume that persons engaged in business are aware of the contents of the agreements they sign. In holding that the waiver of implied warranty was valid in that transaction involving businessmen, the court stated:

“The phrase in block letters on the face of the lease that called attention to the terms and conditions on the reverse side, combined with the signatures of the [lessees], is sufficient evidence to find that the waiver was brought to the lessee’s attention; that they did not avail themselves of the opportunity to carefully read the lease which they signed is not a cause to annul the waiver provision.” 377 So.2d at 96.

Like the transaction involved in the Louisiana National Leasing case, the lease in the case at bar was a business transaction and not a consumer transaction under federal and state consumer protection laws. The only distinguishing factor between this case and the Louisiana National Leasing Corporation case is that an attorney signed the lease in the latter case whereas a man engaged in the logging business signed the lease in this case. We do not find that this distinction alone is sufficient to change the result. Mr. Hill was certainly aware, and he admitted on the stand, that Capitol City’s representative told him specifically that there was no warranty running from Capitol City to the lessee. This verbal notification, combined with the fact that the lease form contained a printed waiver of warranty on the back page which was referred to in block letters on the front page, is sufficient for us to find that Hill validly waived any implied warranty owed it by lessor under the law. The trial court judgment finding the waiver of warranty invalid is therefore reversed, and Hill will be cast to pay $16,736.00 which is due under the acceleration clause for the first lease and $18,409.60 which is due under the acceleration clause for the second lease. These amounts will be offset by the $16,000.00 Capitol City obtained at the public auction for the two skidders. Hill will also be cast for attorney’s fees in the amount of 20 percent of the rents due, which is the percentage set forth under the lease.

While the trial court’s finding that there was no privity of contract between Minton and Hill is certainly correct, the trial court overlooked the fact that Capitol City assigned all of its warranty rights to its lessee. Being the assignee of the buyer’s warranty rights against the seller, Hill stood in the shoes of Capitol City Leasing insofar as the seller’s implied warranties on the skidders are concerned. Hill, in effect, stands in the shoes of the buyer as regards the exercise of warranty rights against Minton.

There exists in every sale the implied warranty against hidden defects in the thing sold. La.C.C. arts. 2475, 2476, 2521. This implied warranty against hidden defects arises by operation of law and, while it may be waived by the buyer, it need not be set forth in the act of sale in order to exist. There is no evidence in this case that Hill ever waived the implied warranty of fitness.

The fact that an express 30-day warranty was given does not mean that the implied warranty of fitness was waived.

REDHIBITORY DEFECTS

We must agree with the trial court that the vices and defects in the rebuilt log skidders were of sufficient severity to render the skidders useless for their intended purposes. La.C.C. art. 2520. We find, too, that since Minton rebuilt the machines with all new parts prior to the time of sale and lease, Minton became a manufacturer of the skidders. See Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La.1974), where a company which adapted a truck for pulpwood hauling was found to be a manufacturer.

As a manufacturer, Minton is presumed to know the vices of the thing it sold and is answerable to the buyer for restitution of the price, repayment of expenses, including attorney’s fees, and for damages. Breaux v. Winnebago Industries, Inc., 282 So.2d 763 (La.App. 1st Cir. 1973). Minton’s argument that there was no tender of the equipment to it and request for return of the purchase price is untenable. Tender is not required as a prerequisite to a redhibitory action against the manufacturer. Burns v. Lamar-Lane Chevrolet, Inc., 354 So.2d 620 (La. App. 1st Cir. 1977). Additionally, the fact that Hill asked Minton to remove the machines from the job site and attempt to sell them is sufficient in our minds to show that a tender was actually made to the seller. See Perrin v. Read Imports, Inc., 359 So.2d 738, at 740 (La.App. 4th Cir. 1978). Minton will therefore be required to reimburse Hill for all of the amounts Hill must pay Capitol City Leasing. Minton will also be cast for $3,000.00 in attorney’s fees in favor of Hill. Hill did not prove any other damages at trial and all other claims will be dismissed.

DECREE

Therefore, for the above and foregoing reasons, the decision of the trial court is reversed in part and amended in part as follows.

IS IS ORDERED, ADJUDGED and DECREED that there be judgment in favor of Capitol City Leasing Corporation against Sidney D. Hill, doing business as S. D. Hill Logging Contractor, and Robbie C. Hill, the lessee’s guarantor, in the amount of $35,-145.60 representing the rentals due and owing under the two log skidder leases together with legal interest thereon from the date of judicial demand and subject to a credit of $16,000.00. IT IS FURTHER ORDERED, ADJUDGED and DECREED that there be judgment in favor of Capitol City Leasing Corporation against Sidney D. Hill and Robbie Hill for the sum of $5,110.18, together with legal interest from the date of judicial demand representing the cost of sale and preparation for sale, plus the sum of $3,829.12 for attorney’s fees, which represents 20 percent of the accrued rentals due and owning by the lessees.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that there be judgment in favor of Sidney Hill and Robbie Hill and against Minton Equipment Company, Inc. for all amounts the Hills have been cast to pay unto Capitol City Leasing Corporation, plus the sum of $3,000.00 in attorney’s fees and all costs of these proceedings.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that all of the other demands in this litigation are dismissed. REVERSED IN PART, AMENDED IN PART AND RENDERED.

      . A Bombardier skidder is a soft-track vehicle with high flotation qualities which can pull logs out of swamps where no wheeled vehicle can go-


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    Albertha THORNTON v. DHHR, Earl K. Long Memorial Hospital.
    No. 13938.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    William P. Brumfield, Brumfield & Brumfield, Baton Rouge, for appellant.
    Sidney W. Hall, Staff Atty., Dept, of Health and Human Resources, Baton Rouge, for appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an appeal by Ms. Albertha Thornton from a decision of the State Civil Service Commission affirming her dismissal from state service as a Nursing Aide II at Earl K. Long Hospital.

The letter notifying Ms. Thornton of her termination was dated April 3, 1979, and her termination was effective at the close of business that date. The Civil Service Commission approved the dismissal making the following findings of fact:

“1. Appellant had been employed as a Nurse Aide with the X-Ray Department of Earl K. Long Memorial Hospital since the inception of that department at that hospital. She was probably the oldest tenured employee in that department.
“2. At the inception of the department her duties primarily consisted of transporting patients from the various rooms to the X-Ray Department and sometimes assisting the X-Ray technologists in developing of X-Ray film. Later, the nuclear medicine and ultra-sound sections were added to the X-Ray Department although they were physically located a room or two away. Appellant resisted the inclusion of these new branches into the X-Ray Department and stated on many occasions that her job description did not include delivering patients to nuclear medicine and ultra-sound.
“3. Appellant was quite vocal about her objections to her duty assignments both in the presence of supervisors with less tenure than herself and other co-employees.
“4. Appellant was quite talkative with various employees about her problems, and some of the employees considered this disruptive to their work while other employees took it in stride.
“5. On July 30 and July 31, 1979 Mar-garite Anderson, the shift supervisor of the 3-11 shift upon which appellant worked and for which shift appellant was the only Nurse Aide assigned, instructed appellant to secure and deliver several patients to X-Ray and nuclear medicine. By testimony of Frank West, Diagnostic Radiology Supervisor, Margarite Anderson, shift supervisor of the 3-11 shift, and Elaine Porsche, X-Ray darkroom technologist, appellant stated that delivering patients to nuclear medicine was not her duty and she was not going to get the patient.
“6. Leon Jack Ricks, X-Ray technologist and appellant’s own witness, stated that appellant would not necessarily refuse to get the patient by saying T refuse to do that’ but would delay obeying any orders and fuss about it until it was convenient for her. On one occasion, he testified, on July 30 or 31, appellant simply stated she would get to it after she got back from dinner.
“7. On July 31, 1979 appellant was talking loudly and disturbing Joe Hopkins, X-Ray Technologist II in the X-Ray room, and Margarite Anderson had to ask appellant to leave the X-Ray room.
“8. On July 31, 1979 appellant was the only Nurse Aide on duty and was the only person whose responsibility it was to secure and transport patients to the X-Ray Department. On that date, appellant disappeared from the department for about 45 minutes. She was paged, without any response. When she returned she stated that she had been looking for sheets. If, in fact, appellant had been searching for sheets, she had not requested permission to leave the department nor even advised anyone in the department of her whereabouts so that they might know where she was or approximately when she would return.
“The Commission finds that the appellant had, in fact, committed the offenses charged by the appointing authority in the August 3, 1979 letter of termination. Appellant was obviously very strong-willed and very proud that she was the oldest employee in that department. Her strong will and her tenure apparently led her to resent or resist changes in the duty schedule and orders from supervisors with less tenure than herself. Indeed, the Commission had a sample of this when appellant would not even let the Commissioners complete a question prior to being interrupted with a discourse that appellant had on her mind.
“The Commission finds that the charges set out have been proven and form a sufficient basis for the disciplinary action taken. Appeal is denied and dismissed.”

Legal cause for disciplinary action exists when the conduct complained of impairs the efficiency of the public service and bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962). The burden of proof, which is upon the appointing authority, requires that the appointing authority show by a preponderance of the evidence that the employee’s conduct did, in fact, impair the efficient and orderly operation of the public service. La.Const. Art. X, § 8 (1974). A preponderance of evidence means evidence which is of greater weight or more convincing than that which is offered in opposition thereto. Jennings v. Allstate Insurance Company, 273 So.2d 534 (La.App. 1st Cir. 1973). And, proof is sufficient to constitute a preponderance when, taken as a whole, it shows the fact or causation sought to be proved as more probable than not. Aubert v. Charity Hospital of Louisiana, 363 So.2d 1223 (4th Cir. 1978), writ refused 365 So.2d 242 (La.1978).

FACT FINDING NO. 2

Appellant argues that the Commission’s finding of fact that the hospital’s nuclear medicine and ultra sound sections were part of the x-ray department was not proved by a preponderance of the evidence. We disagree. The head of the radiology department testified that nuclear medicine and ultra sound were part of his department. This we feel is sufficient.

FACT FINDING NO. 5

Appellant contends that unrefuted evidence in the record shows that the hospital director instructed appellant that transporting patients to nuclear medicine was not part of her job classification. From the evidence as a whole we conclude that since nuclear medicine and ultra sound were attached to the x-ray department, nurses aides in the x-ray department also handled the transportation of patients to nuclear medicine because the supervisor on duty would so instruct. Any reference to what the hospital director said was hearsay, though not objected to. Even though it was not objected to, and thus was admitted, there is sufficient evidence from other witnesses to reach the conclusion arrived at by the Commission.

FACT FINDING NO. 6

Appellant argues that this finding of fact does not amount to insubordination. We disagree. Though we conclude that appellant never told her superior that she refused to do a particular job, sufficient evidence exists in the record to show a passive refusal to do the work or a slow down by appellant in doing her job. Thus, we find no error.

FACT FINDING NO. 8

It is argued that appellant told two fellow workers where she would be. However, when these individuals were called to testify, they were not asked to confirm appellant’s testimony on this point; thus, there is a presumption that they would not confirm her story.

FACT FINDINGS NOS. 3, 4 AND 7

These fact findings all deal with appellant’s loud vocal trait. We have studied the record in detail and conclude that there was no error made by the Commission.

Therefore, for the above and foregoing reasons, the judgment of the State Civil Service Commission is affirmed at appellant’s costs.

AFFIRMED.


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    SOUTH LAFOURCHE CRAWFISH FARM, INC. v. CAJUN FLYING SERVICE, INC. and Helena Chemical Company.
    No. 13948.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.

      Stanley L. Perry, Galliano, counsel for plaintiff-appellant, South Lafourche Craw-fish Farm, Inc.
    Larry P. Boudreaux, Thibodaux, counsel for defendants-appellees, Cajun Flying Service, Inc. and Helena Chemical Co.
    James L. Murphy, Jr., New Orleans, co-counsel for defendant-appellant, Helena Chemical Co.
    Joseph A. Reilly, Jr., Houma, counsel for third party defendant-appellee, Velsicol Chemical Corp.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

South Lafourche Crawfish Farm, Inc. brought this suit alleging that the defendants, Helena Chemical Company and Cajun Flying Service, Inc., killed all the vegetation in plaintiff’s commercial crawfish ponds causing an oxygen depletion which resulted in total pond failure. From a trial court judgment absolving the defendants of liability, the plaintiff perfected this appeal.

The issue on appeal is whether the plaintiff proved a causative connection between the chemical spraying activity and the pond failure. If causation is shown, we must decide whether the defendants owed a duty to warn the plaintiff that the dying vegetation would deprive the water of oxygen to such a magnitude that the ponds would fail.

FACTS

South Lafourche Crawfish Farm, Inc. began operating two commercial crawfish ponds in the southern part of Lafourche Parish in the early 1970’s. One pond covered 350 acres, the other 150 acres. The ponds were initially stocked with “seed” crawfish, which grew and reproduced to begin the harvesting cycle. The ponds were flooded with water from a nearby reservoir on a seasonal basis. The flooding generally occurred in early fall. Crawfish trapping began in the winter months and continued through the spring. The ponds were then drained and the crawfish burrowed into the ground to begin the cycle anew.

In early August, 1977, Raymond Melan-con, an official with South Lafourche Crawfish Farm, contacted Helena Chemical Company to obtain a herbicide to rid the two ponds of vegetation. Melancon claims he asked specifically for the chemical 2-4-D and told the Helena representative that he wanted only broad leaf vegetation killed. The vegetation had become a hindrance to fishermen trapping in the ponds and some of them had suggested spraying to relieve the problem. Helena recommended the use of a chemical called Weed Master — a combination of 2-4-D, Amine and Banvel mixed at V/2 quarts per five gallons of water per acre. Weed Master was a general purpose herbicide.

The spraying operation was arranged and Helena agreed to supply the chemical while Cajun Flying Service was to handle the aerial spraying.

The spraying operation occurred soon after the contact between Melancon and Helena. At the time of the spraying the ponds were dry and the crawfish were deep in their burrows awaiting the fall flood waters that would bring them to the surface. As a result of the spraying, all plants in the ponds were killed. “In other words,” Me-lancon testified, “it [the spray] did a good job. It killed everything.”

A few days after the spraying, a heavy rainfall occurred but the testimony is conflicting as to whether the rainfall flooded the ponds. About a month after the spraying, South Lafourche Crawfish Farm began flooding the ponds with water from its reservoir in anticipation of the 1977-78 season. It took 26 to 30 days to flood the ponds with 13 to 18 inches of water. However, when test runs were made for crawfish, they revealed that a total pond failure had occurred. No crawfish were caught during the 1977-78 season, as compared to 150,000 pounds in 1973-74, 100,000 pounds in 1974-75, 46,000 pounds in 1975-76, and 28,000 pounds in 1976-77.

The preponderance of the expert testimony introduced at trial points to oxygen depletion as the cause of the pond failure. The chemical itself was not the cause of the crawfish failure: the crawfish did not suffer from chemical poisoning. The oxygen depletion was caused by the decay of the vegetation killed by the chemical. The decaying process apparently robbed the water of oxygen to the detriment of the crawfish. Other possible causes for the pond failure were also mentioned, including excessive rainfall in late summer and early fall of 1977 and improper flushing of the ponds.

TRIAL COURT’S FINDING

In written reasons for judgment the trial court held:

“When all of the possibilities are analyzed, the simple truth is that no one was able to say with any degree of certainty what did cause the kill. But assuming that the excessive dead vegetation was responsible for the loss of oxygen in the pond and that this was the reason for the pond failure, can liability be assessed to the defendants? We think not. Plaintiff’s [sic] contracted with the defendant, Cajun Flying Service for the spraying of the pond area to accomplish the killing of the vegetation. Defendants complied with their contract and accomplished the purpose sought by the plaintiff. Defendant as a spray service was not the guarantor or insurer of the crawfish pond operation. Of the two parties to the contract, the plaintiff was the ‘expert’ in this field, and it made the decision when to spray and what to spray. As a matter of fact, the testimony revealed that this was the first crawfish pond that the defendants had been asked to spray, and certainly there was no evidence that they held themselves out as experts in that particular field of spraying nor that they contracted for anything more than to kill the vegetation in a given area, which they successfully accomplished. The court is merely commenting on this in an overall view of the case, but the primary ruling of the court is that plaintiff failed by lack of evidence to carry its burden of proof that defendants were indeed responsible for the failure of the ponds.”

SPECIFICATIONS OF ERROR

The plaintiff contends on appeal that the trial court erred in failing to find that the loss of the crawfish was directly related to the defendants’ joint negligence, and in failing to award damages to the plaintiff as a result of the loss.

BURDEN OF PROOF

The gravamen of the plaintiff’s allegation in this suit is that the chemical Weed Master was used instead of the chemical 2-4-D, which was purportedly requested by Mr. Melancon. Had 2-4-D been used, the plaintiff claims only broad leaf vegetation would have been killed and the oxygen depletion would not have occurred. To succeed in this litigation, plaintiff had to prove that its allegation was indeed true — that 2-4-D would not have caused the same result caused by Weed Master. However, plaintiff has failed to prove that the application of the herbicide Weed Master caused more oxygen depletion than would have been caused by the application of a broad leaf herbicide.

Additionally, we agree with the trial judge in his finding that other factors could have caused the destruction of the ponds.

Therefore, for the above and foregoing reasons, the decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.


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    Walter A. PACE, Jr. v. Sharon Porter CAGE et al.
    No. 14068.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Kenneth E. Barnette, Baton Rouge, defendants-relators.
    Edward W. Gray, Baton Rouge, for plaintiff-respondent.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This case is before us on alternative writs of mandamus, certiorari and prohibition directed to the trial judge, who overruled the tortfeasor’s exception of no right or cause of action filed against the UM insurer. The trial judge elected to take the alternative, and the writ of certiorari was issued.

On October 28, 1977, plaintiff Walter A. Pace, Jr. received serious injuries when the motorcycle he was operating collided with an automobile driven by one of the defendants, Sharon Porter Cage. Pace filed suit against Cage; Prudential Property and Casualty Insurance Company, which provided liability insurance for Ms. Cage in the amount of $5,000.00; State Farm Mutual Automobile Insurance Company and Hartford Accident and Indemnity Company, both of which provided uninsured and underin-sured motorist insurance which inured to the benefit of the plaintiff. Hartford, as one of Pace’s underinsured motorist carriers, filed a third party petition against Ms. Cage to assert and protect its potential right of recovery against her. After Ms. Cage answered Hartford’s third party petition, she and her liability insurer, Prudential, entered into a compromise settlement with Pace. Pace executed a complete release in favor of Prudential and Ms. Cage in consideration for the payment of Prudential’s $5,000.00 policy limit to him. At about the same time, Hartford made a $5,000.00 payment to the plaintiff under the uninsured motorist coverage which it provided.

Hartford refused to dismiss its third party action against Ms. Cage. She then filed a peremptory exception of no cause or right of action, contending that a recent Supreme Court decision precluded the UM insurer from obtaining reimbursement from a tort-feasor who had been released by the plaintiff. See Niemann v. Travelers Insurance Company, 368 So.2d 1003 (La.1979). The trial judge overruled Ms. Cage’s exception, and again overruled a second exception of no cause or right of action which was based upon Niemann and a more recent case which purported to follow Niemann. See Bond v. Commercial Union Assurance Companies et al, 387 So.2d 617 (La.App. 3rd Cir. 1980). Ms. Cage then filed an application for writs with this court and, as indicated above, the alternative writs were issued.

The issue is whether the plaintiff’s uninsured motorist insurer can recover from the tortfeasor the amount the UM insurer has paid the plaintiff when the plaintiff has settled with and released the tortfeasor.

In a well reasoned response to the alternative writs, the trial court said Niemann did not address the question of the right of a UM insurer to proceed against the tort-feasor. The trial court found that the controlling rule in this case was found in La. R.S. 22:1406(D)(4) which provides in part:

“(4) In the event of payment to any person under the coverage required by this section and subject to the terms and conditions of such coverage, the insurer making such payment, shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made,

Under the trial court’s interpretation, the above quoted statute allows the UM insurer to obtain the proceeds resulting from the exercise of rights of recovery “of such person.” The court noted that the statute does not condition reimbursement upon the exercise of those rights “by such person.” He opined that the legislature in adopting R.S. 22:1406(D)(4) intended to give the UM carrier an independent statutory cause of action against the tortfeasor. He was further of the opinion that Niemann contained imprecise language unnecessary to the decision therein and that the Third Circuit decision in Bond, supra, “incorrectly interpreted Niemann.” The trial court noted that if the Bond interpretation of Niemann is correct the tortfeasor will escape paying damages which should rightfully be borne by him.

In Niemann the plaintiff settled with and released the principal defendant and the defendant’s liability insurer after settling with the insurer for $250.00 less than the insurer’s $10,000.00 policy limits. The UM carrier which had been sued by the plaintiff then filed a motion for summary judgment against the plaintiff claiming that the plaintiff’s settlement with the tortfeasor and the tortfeasor’s liability insurance company was executed without the UM carrier’s consent in violation of the policy’s consent-to-settle clause. In that light, the UM carrier claimed the release impaired its right of subrogation against the underin-sured motorist with whom the plaintiff had settled. In striking down the subrogation and consent-to-settle clauses of the UM insurance policy the Supreme Court had to decide whether the UM carrier had any rights which had been impaired by the plaintiff’s settlement with the tortfeasor. The court found that R.S. 22:1406(D)(4) provides UM carriers with only certain “reimbursement rights” and not with a right to subrogation. The statute only gives the UM carrier the right to receive proceeds of a settlement or judgment resulting from the exercise of the insured’s rights against the uninsured or underinsured tortfeasor. Since the plaintiff settled with and released the tortfeasor, the court found that the UM carrier would be unable to secure reimbursement. In so finding, the court stated:

“On the basis alone of statutory interpretation, we find that the UM insurer has no right under R.S. 22:1406{D)(4) other than the right to reimbursement from such proceeds, if any, that the insured in fact recovers from the underinsured tort-feasor.”

In the Bond case, supra, the Third Circuit, following Niemann, dismissed the third party demands of two UM insurers against a defendant who was cast in judgment for $58,007.58. On its own motion, the court held that the UM insurers have no cause of action against the defendant tort-feasor. “The only rights which the uninsured motorist insurer does have is [sic] the right to reimbursement from the insured and not from the tort-feasor.” 387 So.2d at 620.

In Hawthorne v. Southeastern Fidelity-Insurance Company et al, 387 So.2d 26 (La. App. 3rd Cir. 1980), the court relied on Niemann and Bond, supra, in holding on its own motion that the UM insurer does not have a cause of action to pursue a third party claim against an alleged tortfeasor or his insurer.

We find that Bond and Hawthorne are correct applications of Niemann and that Niemann itself provides the answer to the issue at hand. The answer runs counter to the decision of the trial judge in this case. Niemann holds that a UM insurer has neither a legal nor conventional right of subro-gation against the tortfeasor. Bond and Hawthorne go a step further and hold that the UM insurer has no independent cause of action against the tortfeasor.

The distinction made by the trial judge in the use of the terminology “of such person” in the statute is not decisive of the issue. We fail to see such an important issue being decided by the legislature with the use of the simple word “of.” If the legislature ever intended to grant the UM insurer a separate cause of action against the tort-feasor, it could have done so in clear language rather than, as suggested by the trial judge, hiding same behind the word “of.”

Therefore, for the above and foregoing reasons, the writ is made peremptory.

WRIT MADE PEREMPTORY.