author: LANIER, Judge.

text:
    Dale FRAZIER v. DEPARTMENT OF STATE CIVIL SERVICE.
    No. 83 CA 0538.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Dale Frazier, in pro. per.
    Robert R. Boland, Jr., Legal Counsel, Dept, of State Civil Service, Baton Rouge, for appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is an appeal by a classified employee of the Department of Health and Human Resources (DHHR) from a decision of the State Civil Service Commission (Commission) which summarily dismissed his claims that his reclassification in a new job title after his old job title was abolished during a departmental reorganization was discriminatory and also resulted in a demotion without just cause.

FACTS

In 1979, DHHR was reorganized. Prior to the reorganization, the employee, Dale Frazier, was classified as a Welfare Case Supervisor III in the office of Family Security of DHHR. In this classification, he supervised persons classified as Welfare Case Supervisor I; that is, he supervised supervisors. As part of the reorganization, Frazier was placed in the Division of Evaluation and Services (DES) of DHHR. He was assigned to be the Administrative Coordinator of the Tangipahoa Office and was to supervise the supervisory staff of the office. This position also required him to supervise Adult Protective Services. Those to be supervised by him were a Children’s Case Supervisor I, a Welfare Case Supervisor I, a Clerk IV and the Director of the Amite Day Care Center. Frazier contends that this new assignment was equivalent to his prior duties.

On August 27, 1979, the Department of Civil Service (Department) approved new job titles for DES and abolished the job title of Welfare Case Supervisor III. Prior to this time, Frazier had submitted an administrative form with his current job description through channels to the Department to secure a new job title.

In December of 1980, the Welfare Case Supervisor I supervised by Frazier retired, and he had to assume her duties of directly supervising workers. On April 14, 1980, the Children’s Case Supervisor I was transferred, and Frazier was required to directly supervise the Children’s Protective Services workers.

On May 1, 1980, Frazier was asked to submit to the Department an updated job description and organizational chart, and he did so. On June 16, 1980, the Department assigned him a job title of Human Service Supervisor. Frazier immediately appealed this decision contending that he should have been classified as a Social Worker Supervisor II.

On September 4, 1980, two workers were promoted to assume the responsibilities of the departed Welfare Case Supervisor I and Children’s Case Supervisor I. Both were classified as Human Service Supervisor — the same as Frazier. Frazier discontinued direct supervision of the protective services for children workers. Subsequently, the two new supervisors were each reclassified as Social Worker Supervisor I effective August 27, 1979, with retroactive pay.

Frazier again appealed his reclassification on January 16,1981. Frazier’s appeals were denied on May 3, 1982. On May 17, 1982, Frazier filed this appeal with the Commission contending that the failure to classify him in accordance with his duties on the effective date of the title change is discriminatory and that the abolition of his classification of Welfare Case Supervisor III and reclassification as Human Service Supervisor resulted in a demotion without cause.

On June 10, 1982, the Department filed a motion for summary disposition of the appeal contending the decision refusing to “reallocate” Frazier to Social Worker Supervisor II is controlled by Rule 5.3 and can only be considered if it is alleged such decision is discriminatory, Frazier’s allegations of discrimination are not asserted with the specificity required by Rule 13.-11(d) and the appeal of the demotion by reassignment claim was not timely.

On February 18, 1983, the Commission ruled the appeal was timely and the allegations of discrimination were not alleged with the proper specificity. The appeal was summarily dismissed. Frazier timely appealed to this court contending he supervised workers in a “priority” program at all times which entitled him to a higher classification than Human Service Supervisor, the failure to consider this fact was discriminatory, the claim of demotion was a separate issue from the claim for discrimination and the demotion claim was properly before the Commission.

DISCRIMINATION CLAIM

La. Const, of 1974, art. X, § 8(B) provides as follows:

Discrimination. No classified employee shall be discriminated against because of his political or religious beliefs, sex, or race. A classified employee so discriminated against shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part. The burden of proof on appeal, as to the facts, shall be on the employee.

The Commission has rule-making power, and its rules have the effect of law. La. Const, of 1974, art. X, § 10(A)(1) and (4). If a Civil Service rule is reasonable and not violative of basic constitutional rights, it must be recognized and given effect by the courts. Thoreson v. Department of State Civil Service, 433 So.2d 184 (La.App. 1st Cir.1983), writ denied, 440 So.2d 726 (La.1983), reconsideration denied, 442 So.2d 452 (La.1983). Civil Service rules even prevail over acts of the legislature which may be in conflict with them. Smith v. Department of Health and Human Resources, 416 So.2d 94 (La.1982).

Civil Service Rule 13.10 authorizes a classified employee to appeal to the Commission if he has been discriminated against. The Department contends that it is entitled to summary dismissal of the discrimination claim pursuant to Rule 13.14(a)(6) because the written notice expressing the cause for the appeal fails to allege specific facts supporting the conclusion of discrimination as required by Rule 13.11. Rule 13.11 (as amended effective April 6, 1982) provides in pertinent part as follows:

Request for Appeal.
A notice of appeal must
(d) Contain a clear and concise statement of the actions complained against and a clear and concise statement of the basis of the appeal. Where discrimination is alleged to be a basis for appeal, specific facts supporting the conclusion of discrimination must be alleged in detail. The specific facts required will vary depending on the nature of the appeal; however, the facts must be alleged in sufficient detail to enable the agency to prepare a defense. A conclusion of discrimination is not sufficient. The types of facts which must be included are:
1. the date, time and place the discriminatory action took place;
2. the name of the person or agency alleged to have taken the discriminatory action;
3. a description of how appellant’s action, conduct or performance was the same as that of other persons who were treated differently;
4. the names of other persons treated differently and the dates the different treatment occurred;
5. a description of events, including the dates and circumstances thereof, which led appellant to believe that the adverse decision was based on his religious or political beliefs, sex, race, or any other non-merit factor.

In Legros v. Department of Public Safety, Division of State Police, 364 So.2d 162, 165 (La.App. 1st Cir.1978), writ denied, 366 So.2d 562 (La.1979), this court made the following observations concerning Rule 13.-11(d):

Appellant’s allegations of discrimination do not meet the requirements of Rule 13.11(d) which we find to be a valid exercise of the Commission’s rule making authority. The obvious purpose of Rule 13.11(d) is to insure the appointing authority the same degree of specificity concerning its alleged discrimination as the employee is entitled to receive with respect to the charges on which the disciplinary action is predicated. The requirement is reasonable in that it relieves the appointing authority of the disadvantage of having to defend against vague and unspecified charges of discrimination and thereby clearly defines the scope of the hearing before the Commission.

See also Newton v. Louisiana Training Institute-Monroe Department of Corrections, 376 So.2d 1032 (La.App. 1st Cir. 1979).

In his notice of appeal to the Commission, Frazier contends that the decision to classify him as a Human Service Supervisor is discriminatory because it “does not take into consideration the duties that were performed by me on the effective date of the title change nor does it give consideration to the duties assigned subsequent to the effective date of title change.” Discrimination is defined in Rule 1.14.1 as the “consideration of religious or political beliefs, sex, race, or any other non-merit factors.” The above allegation by Frazier just does not fit the definition of discrimination in the Civil Service Rules. We have also carefully reviewed the notice of appeal, and it does not allege facts showing discrimination with the specificity required by Rule 13.11. The Commission properly granted the Department’s request for summary dismissal of the discrimination claim. Onesta v. Department of State Civil Service, 434 So.2d 1153 (La.App. 1st Cir.1983); Mayeaux v. Department of State Civil Service, 421 So.2d 948 (La.App. 1st Cir.1982).

DEMOTION CLAIM

Frazier contends that the abolition of his position as Welfare Case Supervisor III and his reclassification as a Human Service Supervisor constituted a demotion without just cause.

A classified employee who has been improperly demoted may appeal to the Commission. Rule 13.10(b). A demotion is defined in Rule 1.11 as “a change of a permanent or probationary employee from a position of one class to a position of another class for which a lower minimum rate of pay is prescribed.” In his notice of appeal, Frazier does not contend that his reclassification as Human Service Supervisor resulted in a lower minimum rate of pay. Without such an allegation, he cannot contend that he was demoted and cannot prevail in his appeal to the Commission on that basis.

DECREE

For the foregoing reasons, the decision of the Commission summarily dismissing Frazier’s appeal is affirmed at his costs.

AFFIRMED.

      . Frazier essentially makes this same contention in his assignment of error 1 to this court.

      . A classified employee may not appeal a decision effecting a reallocation unless there is an allegation of discrimination. Rules 5.3 and 1.32.


source: Caselaw Access Project

license: Public Domain

text:
    Dayna Schwarz, Wife of/and James D. MASSINGALE v. Sandra T. SIBLEY, et al.
    No. 83 CA 0587.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Ronald F. Fontana, Metairie, for plaintiffs-appellants Dayna Schwarz, Wife of/and James D. Massingale.
    John W. Perry, Jr., Baton Rouge, for third party plaintiff-appellant Aetna Casualty & Surety Co.
    Robert E. Tillery, and Robert J. Vanda-worker, Baton Rouge, for defendants-appellants Charles F. Sibley, Sandra T. Sibley and Southern Farm Bureau Casualty Insurance Co.
    Dorothy Dubroc Thomas, Baton Rouge, for defendant-appellee South Central Bell Telephone Co.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is a suit for damages in tort by Dayna Schwarz Massingale, wife of/and James Massingale, arising out of an automobile accident. Named as defendants are Sandra T. Sibley, wife of/and Charles F. Sibley, and their automobile liability insurer, Southern Farm Bureau Casualty Insurance Company (Farm Bureau); Mark Franks and his employer, South Central Bell Telephone Company (Bell); and the Massingale’s underinsured motorist insurer, Aetna Casualty & Surety Co. (Aetna). The Sibleys and .Farm Bureau answered and filed a third party demand against Bell, James Massingale and Aetna seeking indemnity and/or contribution. Aetna answered and filed a third party demand against Sandra T. Sibley, Mark Franks and Bell seeking indemnity. Bell answered the main demand and the third party demands and filed a motion for summary judgment. After a hearing, the trial court granted a summary judgment in favor of Bell and dismissed the main and third party demands against it. From this judgment, the Massingales, the Sibleys, Farm Bureau and Aetna have devolutively appealed.

ALLEGED FACTS

On August 3,1981, at approximately 5:00 p.m., James Massingale was operating a 1979 Toyota owned by Dayna Schwarz Massingale in a westerly direction in the left (inside) lane of Perkins Road at its intersection with Cloverdale in East Baton Rouge Parish, Louisiana. Dayna Schwarz Massingale was a passenger in the Toyota at this time. Cloverdale intersects with Perkins Road from the south. On the north side of this intersection is a shopping center parking lot. At this same time and place, Sandra Sibley was operating a 1979 Chevrolet pickup truck owned by her and was attempting to leave the shopping center parking lot at a point opposite the entrance of Cloverdale into Perkins. Sibley intended to make a left turn onto Perkins Road and drive in an easterly direction.

When Sibley reached Perkins Road, a large truck was proceeding in a westerly direction and approaching from her left in the right (outside) lane of Perkins Road. This truck had the apparent purpose of turning right into the shopping center. Sibley also observed a van owned by Bell and driven by its employee, Mark Franks, stopped in the left (inside) eastbound lane of Perkins Road at its intersection with Cloverdale. Franks made a hand signal to Sibley and she proceeded to attempt to cross both westbound lanes of Perkins but was struck by the Massingale vehicle in the left (inside) westbound lane of Perkins -Road. The Massingales claim that they sustained injuries as a result of this collision.

SUMMARY JUDGMENT

The appellants contend that the district court committed error by granting the summary judgment and dismissing Bell from this suit because a genuine issue of fact exists as to whether or not Franks’ act of signaling Sibley constituted negligence which caused the accident.

In Morgan v. Matlack, Inc., 342 So.2d 167, 169 (La.1977), appears the following:

The law is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Stallings v. W.H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

See also Quintana Petroleum Corporation v. Alpha Investments Corporation, 435 So.2d 1092 (La.App. 1st Cir.1983). If the supporting documents presented by a party moving for a summary judgment are sufficient to resolve all genuine issues of fact, the burden shifts to the opposing party to present evidence showing that material facts are still at issue. At this point, the opposing party may no longer rest on the allegations and denials contained in his pleadings. La.C.C.P. art. 967; Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Broussard v. Henry, 423 So.2d 67 (La.App. 1st Cir.1982).

The Massingales allege the following facts in their petition:

On the said date and time, petitioner, James D. Massingale, was driving the 1979 Toyota Tercel owned by petitioner, Dayna Schwarz Massingale, in a westerly direction on Perkins Road in the left traffic lane in a careful, prudent and proper manner; that as petitioners’ vehicle was crossing the intersection of Clo-verdale, the defendant, Sandra T. Sibley, was entering Perkins Road from a shopping center situated on the north side of Perkins Road and her truck collided with petitioners’ car; the said accident forms the basis of the damages complained of herein.
Based on information and belief, petitioners aver that, just prior to the accident, a truck owned by South Central Bell and driven by its employee, Mark J. Frank (sic) had been travvelling (sic) east on Perkins in the left traffic lane, had stopped at Cloverdale to enter the shopping center which Sandra Sibley was preparing to leave and the defendant, Mark J. Frank (sic), motioned to Sandra T. Sibley to enter Perkins Road, the result being that she drove her truck into petitioners’ car.

It is uncontested that Franks made a gesture or hand signal to Sibley. Franks admitted this in his deposition filed in the record in support of the motion for summary judgment. However, what was meant or intended by Franks’ hand signal is contested.

In his deposition, Franks gives the following testimony concerning the meaning of his hand signal:

Q. Tell me in your own words before I question you in detail as best you recall how this accident occurred and what you saw.
A. I was coming in the left lane headed east. There was a four-wheel drive truck coming out of the parking lot in the shopping center; it was stopped in there. And as I was coming in the left lane, I came to a stop, and I signaled the lady to let her know I was going to let her in out of courtesy;
Q. Mr. Franks, when you made this hand signal with your left hand to the lady who was attempting to drive in an easterly direction onto Perkins Road, what were you doing?
A. Telling her I was going to let her in, and she figured it was O.K. I was just — I let people in all the time, and I tell them they can come in, and most people realize when it’s time to come out the parking lot or not, and I just signaled her to let her know I was going to let her in. I did not signal her to come out there.
Q. You were just letting her know that you were stopped—
A. Right.
Q. —and that if she thought it was safe to come out, she could come out— A. Exactly.
Q. —onto the roadway.
A. Exactly.
Q. You hadn’t checked any traffic — any other traffic going east or west to let her know that there was no other traffic coming.
A. No.
Q. That wasn’t your intent—
A. Right.

However, Sandra Sibley gave a different version of the meaning of the hand signal in her affidavit filed in opposition to the motion for summary judgment. She stated:

At the time of the accident, the sole and only reason why appearer drove out of the parking area was because a telephone company truck driver, Mark J. Franks, stopped in the inside eastbound traffic lane and gave a hand signal to appearer that it was safe for her to exit from the parking area, cross the westbound traffic lanes of Perkins Road and turn left to travel east on Perkins Road. At the time Mark J. Franks signalled to appearer, appearer’s view of westbound traffic was blocked by a truck in the outside westbound lane which was attempting to turn into the parking area where appearer was with her vehicle. Mark J. Franks at that time had a clear and unobstructed view of appearer, the turning truck and also of westbound traffic.
Appearer relied upon Mark J. Franks to use due care in signalling to her that she could safely make the maneuver that he signalled to her to make.

The conflicting interpretations of the meaning of the hand signal present a genuine issue of material fact as to whether or not Franks gratuitously assumed and/or breached a duty owed to Sibley. See, e.g., Andrus v. Police Jury of Parish of Lafayette, 303 So.2d 824 (La.App. 3rd Cir.1975). A resolution of this factual issue requires a credibility evaluation of the conflicting evidence and precludes the granting of a summary judgment.

Bell contends that the cases of Government Employees Insurance Company v. Thompson, 351 So.2d 809 (La.App. 1st Cir. 1977) and Howard v. Insurance Company of North America, 162 So.2d 165 (La.App. 3rd Cir.1964) stand for the proposition that as a matter of law motorists who give gratuitous signals to other motorists cannot be guilty of negligence causing an ensuing accident and that one motorist cannot rely on another motorist for his own safety. Although both of these cases found no negligence on the part of the signaling motorist, both were resolved on the particular facts of each case determined on a trial of the merits. Neither case specifically stands for the proposition that a signaling motorist can never be negligent when another motorist relies on his signals and subsequently has an accident. In Thompson, 351 So.2d at 810, appears the following:

Plaintiffs argue that Mr. Decuir was negligent in ‘leading Thomas to believe that he could safely make the turn when he could not and in encouraging Thomas to leave a position of safety to one of peril.’ We cannot agree. Mr. Decuir’s signal was intended to give Mr. Thomas permission to pass in front of Mr. De-cuir’s stopped truck. Mr. Thomas cannot be relieved thereby of his obligation to keep a proper lookout for oncoming traffic in other lanes of traffic. His misin terpretation of Mr. Decuir’s courteous gesture cannot serve to render Mr. De-cuir guilty of negligence proximately causing the ensuing accident.

(Emphasis added).

In Howard, 162 So.2d at 166, appears the following:

In the present case the record shows that Miss Garner proceeded into the intersection because of the signal given by L.Y. Rhodes. There is some conflict in the testimony as to the type of signal given. Miss Garner and her mother testified that it was evident that Mr. Rhodes was signaling them to cross the intersection. However, Mr. Rhodes and a passenger riding with him testified that the signal only indicated that it was safe for Miss Garner to turn right into Highway 171. He concluded that Miss Garner apparently misunderstood and proceeded to cross the intersection. Our reading of the record convinces us that the trial judge was not manifestly erroneous in these findings. From these facts we conclude that there was no negligence on the part of L.V. Rhodes.

(Emphasis added).

This argument by Bell is without merit.

DECREE

For the foregoing reasons, the judgment of the trial court granting a summary judgment in favor of Bell is reversed, and this cause is remanded to the trial court for further proceedings. Bell is to pay all costs of this appeal; costs in the trial court shall be determined in a final judgment on the merits.

REVERSED AND REMANDED.


author: SAVOIE, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. Seymore BETHLEY, et ux.
    No. 83 CA 0599.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Richard Burtt, Baton Rouge, for plaintiff-defendant in reconvention appellant State, Dept, of Transp. & Development.
    J. Michael LeJeune, Baton Rouge, for defendant-plaintiff in reconvention appellee Seymore Bethley, Susie L. Martin Bethley.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

This is an expropriation suit in which plaintiff, on appeal, takes issue with the quantum award.

Plaintiff is the State of Louisiana, Department of Transportation and Development. It filed suit against defendants, Sey-more and Suzie L. (Martin) Bethley, to acquire property for the Scotlandville Interstate By-Pass. A .76 acre portion of defendants’ 2.74 acre tract was taken. Included with the part taken were five of the eleven frame houses situated on the property, and a portion of the privately owned road, water line, and sewer line servicing these houses.

Prior to trial, plaintiff deposited $83,-090.00 as just compensation for the portion taken. After trial on the merits, the trial court awarded a total of $91,661.00 as compensation for the property taken. This amount was divided as follows: (1) $65,-821.00 as just compensation for the five houses taken; (2) $9,630.00 as the value of the land; (3) $6,210.00 as the value for site improvements (i.e., the privately owned road, water line and sewer line servicing the property); and (4) $10,000.00 due to impairment to the remaining improvements on defendants’ property.

On appeal, plaintiff contends that the trial court’s award of $6,210.00 for site improvements constituted a double award and, therefore, was in error. Further, it contends the trial court erred in awarding $10,000.00 as compensation due to impairment to the remaining improvements.

I. VALUE OF SITE IMPROVEMENTS

Plaintiff’s contention that the separate award for site improvements constitutes a double award is based on the trial court’s award of $65,821.00 as just compensation for the houses taken. Plaintiff argues that the latter award included the value of the site improvements.

Mr. Oren Russell, the court-appointed appraiser, testified that the value of the improvements taken was $65,821.00. Russell did not valué the site improvements separately from the houses. He testified that the value of the site improvements was included in the value of the houses. In conjunction therewith, he stated that the site improvements had no value except in their contribution to the houses.

Contrarily, two other appraisers valued the site improvements separately from the houses. Mr. John Allphin, Jr. appraised the site improvements at $8,031.00 and Kermit Williams appraised them at $6,210.00.

We agree with the latter two appraisers that the site improvements have a value separate unto themselves and irrespective of their contributing value to the houses. A portion of the road, water lines, and sewer lines was taken along with the individual houses and the land thereunder. Accordingly, the trial court’s award of $6,210.00 compensation for the taking of these additional improvements was correct. See Police Jury of St. James v. Borne, 198 La. 959, 5 So.2d 301 (1941).

II. SEVERANCE DAMAGES

Plaintiff contends that the trial court’s award for impairment to the remaining improvements due to noise is error. It asserts two bases in support of this contention. First, plaintiff argues that the subject property has not been damaged in this respect; and, alternatively, if it has been damaged, the landowner has been compensated by the cost of curing the problem by the erection of a noise barrier.

Severance damage is any depreciation in the market value of the landowner’s remaining property caused by the taking. Such damages are recoverable to the extent that the value of the remaining property decreases after the taking as compared with its value before the taking. The landowner carries the burden of proving such damages with legal certainty by a preponderance of the evidence. However, there is no fixed formula by which such damages must be proved. Accordingly, the informed and reasoned opinion of an expert, corroborated by facts in the record, may be sufficient proof of a severance damage loss, particularly where it is accepted by the trier of fact. Thus, the trier of fact’s factual findings as to severance damages and his evaluation of, and the weight he gives to, the testimony of expert witnesses will not be disturbed on review absent a showing of manifest error. State, Department of Transportation & Development v. Tynes, 433 So.2d 809 (La.App. 1st Cir.1983), writ denied, 437 So.2d 1153 (La.1983).

In the instant case, two of the four appraisers determined that the remaining property would suffer impairment due to the taking. Mr. Russell testified to a $10,-000.00 severance award, whereas, Mr. Kermit Williams appraised the damages at $21,210.00.

In support of his severance award, Mr. Russell opined that the remaining improvements were damaged by the taking because they were not buffered against the noise. He pointed out that new subdivisions encountering this problem today undertook special measures to buffer noise intrusion. For example, the homes nearest the Interstate used double paned glass and solid walls facing that area. Likewise, Mr. Kermit Williams testified that the remaining property was less valuable after the taking because of the existence of and closeness to the Interstate. In support thereof, he testified that the lots purchased near the Interstate in Concord Estates were purchased at a considerably reduced price than other lots therein. Also, these lots constituted many of the last lots to be sold in that subdivision.

Based on this testimony, the trial court concluded that there was sufficient proof of a severance damage loss. We find no error therein. However, plaintiff contends that the defendants have been compensated for any such loss by the erection of a noise barrier.

The testimony with respect to the effectiveness of the barrier as a noise barrier was less than convincing. As a result thereof, the extent that noise will be curtailed by the barrier is speculative, at best. For this barrier to be an alternative compensation to a severance value award, it must eliminate the injurious effect of the damage.

The trial court recognized that the barrier would reduce the noise level considerably and, further, reduce some concern and annoyance by placing the Interstate beyond the residences’ line of vision. However, the trial court still felt that there would be some impact on the property and, to that extent, adopted Mr. Russell’s award of $10,000.00 for severance damages.

We find no error with these findings by the trial court and its award based thereon.

For the foregoing reasons, the judgment of the trial court is affirmed. Plaintiff-appellant is to pay court costs in the amount of $8,596.47.

AFFIRMED.

      . The project was designated as State Project No. 450-33-80, Scotlandville Interstate By-Pass (Scotland Avenue-Scenic Highway), on State Route La. I — 110.

      . The five houses included in the taking were single family residences. Of the remaining six, one is divided into three apartments and one is used for storage. The other four are single family residences.

      . Further, the trial court awarded attorney fees and expert witness fees. These awards are not before us on appeal.

      . The record reveals that, in an attempt to reduce the additional noise which will accompany the use of the Interstate, the State has built a barrier consisting of an earth berm/levee topped with a concrete wall between the highway side and the remaining property.


author: COLE, Judge.

text:
    Keith J. TOLLESON and Gerald L. Tolleson v. STATE FARM FIRE AND CASUALTY CO., et al.
    No. 83 CA 0612.
    Court of .Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied June 1, 1984.

      James Funderburk, Houma, for Keith Tolleson and Gerald Tolleson.
    Craig Nelson, New Orleans, for Prudential Property & Casualty Co.
    Jerry H. Schwab, Houma, for State Farm Mutual Auto Insurance Co.
    Lloyd Bourgeois, Thibodaux, for State Farm Fire & Casualty Co. and Mr. & Mrs. Peter Cox.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issues presented here are those of negligence, vel non, and insurance coverage dependent upon the “use” of a motor vehicle.

Plaintiff Keith Tolleson (age 18) and two friends, Mike Songe and Timothy Cox (both age 17), gathered for a morning rabbit hunt on October 5, 1980. The three boys met at the Songe home, loaded their hunting equipment into the Songe car, and traveled to the hunting site. After the hunt they reloaded the equipment into the car and returned to the Songe house. They left most of the gear in the car, and spent considerable time in the house eating and resting. Later the same day the boys prepared to go hunting again. As they made preparations to leave the house, Mike Songe handed Keith and Timothy two guns which were to be used on the hunt. The two boys left the house and began placing the guns in the hatchback area of the car. Mike was delayed in leaving the house by a phone call from his mother.

One of the guns furnished by Mike was an old .16 gauge “crack barrel” shotgun. Keith and Timothy examined this gun and discussed the possibility of such a gun having been used in Civil War times, perhaps in a bank robbery. For some reason this conversation prompted Cox to remove his .16 gauge automatic shotgun (which had been used on the morning hunt) from the rear of the car. In the course of the conversation concerning bank robberies, Cox pointed his gun toward Keith and (believing it to be unloaded) pulled the trigger. The gun fired into Keith’s abdomen, causing serious injury.

Keith and his father, Gerald Tolleson, filed suit against the following parties: Timothy Cox; his parents, Mr. and Mrs. Peter Cox; their homeowner’s insurer, State Farm Fire and Casualty Company; Mike Songe’s automobile liability insurer, State Farm Automobile Insurance Company; and the Tolleson’s uninsured motorist carrier, Prudential Property and Casualty Insurance Company.

After trial on the merits the court found the accident was caused solely by the negligence of Timothy Cox and accordingly rendered judgment against him, his parents, and State Farm Fire and Casualty Company in the total sum of $82,518.16. This amount represented $28,558.16 in medical payments, $3,960 in lost wages and $50,000 in general damages.

There is no dispute on appeal as to the amount of damages awarded by the trial court. Plaintiffs note in their brief they have already been paid the policy limits by State Farm Fire. They argue on appeal the court erred in failing to find Mike Songe negligent and in failing to conclude the Songe vehicle was “in use” at the time of the accident. If we were to agree with plaintiff on both of these issues, the State Farm Auto policy and the Prudential policy would both provide coverage.

Concerning Mike Songe’s alleged negligence, plaintiffs do not dispute the fact that at the moment of the accident, Mike was inside the house, talking on the phone with his mother. He came outside only when he heard the gun fire. However, plaintiffs contend the loaded .16 gauge automatic shotgun was a dangerous instrumentality and required the use of extraordinary care by Mike Songe. They argue he breached this standard of care by failing to ensure that Cox’s gun was unloaded before allowing it to be transported in his vehicle.

In support of this argument plaintiffs cite Valence v. State, 280 So.2d 651 (La. App. 1st Cir.1973), writ refused 282 So.2d 517 (La.1973). In Valance the defendants were a state trooper, Lynwood Wilcox, and his wife Karen. In connection with his work, Trooper Wilcox kept a loaded revolver in the glove compartment of the family car. Mrs. Wilcox, accompanied by her three year old daughter, drove the car to visit a friend. The vehicle was left unlocked in the driveway where a group of young children were playing. One of the children entered the car and removed the gun from the glove compartment. The child fired the gun at his brother, causing serious injuries. The court stated that a loaded gun is a dangerous instrumentality and that the law imposes a duty of extraordinary care on those in control of such weapons. The court rendered judgment against the Wilcoxes, finding them to have breached this duty by leaving the loaded gun in a place easily accessible to small children.

We agree wholeheartedly that a loaded gun is a dangerous instrumentality and imposes a duty of extraordinary care on those who have control of it. However, the facts of the present case and the Valance case are entirely different. In Valance, the persons who had control of the gun were the Wilcoxes. They indeed had a duty to keep the gun out of the reach of small children. (Phrased differently, they had a duty to protect children from the possibility of being harmed by the gun.) They breached this duty by leaving the loaded gun in an unlocked glove compartment of an unlocked car. In the present case, Timothy Cox (as opposed to Mike Songe) was the person in control of the gun. Songe was simply the driver of the vehicle and had no reason to assume responsibility for the gun of his 17 year old friend. It was Timothy Cox who was the owner of the gun, who had hunted with the gun that morning, and who had carelessly discharged the gun while joking about a bank robbery. He certainly had a duty to use extraordinary care in handling the gun (i.e., a duty to protect those around him from being harmed by the gun) and failed to do so. Under the circumstances of this case, Mike Songe, who was not “in control” of the gun, had no duty whatsoever to protect plaintiff from injury by Timothy Cox.

Based on this analysis, we conclude Mike Songe was not negligent. Even if we had reached a different result concerning his negligence, there can be no liability on the part of State Farm Auto unless we find the vehicle was “in use” at the time of the accident.

The State Farm Auto policy is applicable to injury arising out of the “... ownership, maintenance or use of the owned automo-bile_” Plaintiffs contend the Songe vehicle was in use at the time of the accident in that it had been used for the morning hunt, it had transported the loaded gun back to the Songe house following the hunt, and it was going to be used for the afternoon hunt.

The meaning of the term “use” has been the subject of much litigation. It is well established that one need not be actually operating or driving a vehicle in order to be using it. See, Baudin v. Traders and General Insurance Company, 201 So.2d 379 (La.App. 3d Cir.1967), writ refused, 251 La. 224, 203 So.2d 557 (La.1967). Likewise, under the terms of the policy, the word “use” includes loading and unloading of the car.

Plaintiffs cite several cases which have given a broad interpretation to the word “use.” In Bolton v. North River Insurance Company, 102 So.2d 544 (La.App. 1st Cir.1958) plaintiff was standing outside the insured vehicle when a passenger seated in the car slammed the car door on plaintiffs hand. In Cagle v. Playland Amusement, Inc., 202 So.2d 396 (La.App. 4th Cir.1967), writ denied, 251 La. 403, 404, 204 So.2d 578 (1967) plaintiff was injured by a gun which accidentally discharged when defendant’s employee used it to break into the insured car to retrieve the car keys. In Baudin, supra, the defendant was sitting in his parked car. The car’s position blocked the view for oncoming cars; as a result, an approaching auto struck a child pedestrian. In all three cases the courts found the insured automobiles were being “used” within the meaning of the applicable policies.

We note a distinct difference in the facts of these cases and the present■case. In each of the cited cases the injury-causing activity is one that can be readily associated with the use of a car. In other words, a car door slamming, a parked car blocking the view, and the breaking of a window to gain entry into the car are all activities which can be easily characterized as “uses” of the car. But in the present case, the injury-causing activity — a young man carelessly handling a loaded shotgun — is simply not an activity associated with the “use” of the automobile. As the trial court noted, the mere fact that the gun had been stored in the automobile immediately prior to the time of the injury is not a sufficient con-nexity to constitute a “use” of the car.

A case of logical persuasion is Ramsey v. Continental Insurance Company, 286 So.2d 371 (La.App. 2d Cir.1973), writ refused 287 So.2d 187 (La.1973). There the insured, Marty Wood, had driven to school in the family automobile with a loaded shotgun on the front seat. After school he returned to his car and moved the gun from the front to the back seat. As he did so, the gun discharged, injuring two boys in a passing automobile. The boys sued the Woods’ homeowner insurer who in turn third-partied the Woods’ automobile insurer. The homeowner’s policy excluded coverage for injuries arising out of “... the ownership, maintenance, operation, use, loading or unloading of ... any motor vehicle.” Therefore, the issue was whether or not the injury arose out of the use of the insured vehicle.

The court discussed Cagle, supra, and Baudin, supra, and noted the test for determining what constitutes a use is actually two-fold: was the car being used at the time of the accident and was the use of the car directly connected with or a cause of the ensuing accident? The court concluded that although Marty Wood may have been using the vehicle, the accident was not the result of that use but rather the result of the discharging of the shotgun, which itself had no relationship to the use of the vehicle.

Certainly in the present case we must reach the same conclusion. Even if we were to assume arguendo that the vehicle was being “used,” the accident was caused not by the use of the vehicle, but by the discharging of the shotgun. In the present case, as in the Ramsey case, the discharging of the shotgun was caused by the negligent handling of the gun and had absolutely no relationship to the use of the vehicle.

The facts of the present case are similar to those of Bruno v. Hartford Accident & Indemnity Co., 337 So.2d 241 (La.App. 3d Cir.1976). There, three teenage boys had gone hunting and had used a vehicle owned by the father of one of the boys, Lewis Lauve. The young men returned from the hunt and parked the car in the Lauve driveway. One of the boys, Robert Kubes, had opened the trunk in order to unload the hunting gear when John Bruno arrived on his bicycle. Bruno and Kubes entered into a “dare” concerning Kubes firing the gun while inside the city limits. Kubes removed his unloaded double barrel shotgun from the car, placed a shell in one chamber, pulled the trigger to the other empty chamber, and then declared the shot to be a “dud.” He repeated this farce several times (while standing near the vehicle) and then turned toward the Bruno youth. The gun discharged and John Bruno was killed instantly.

A wrongful death action was filed against the insurer of the Lauve vehicle. The plaintiffs argued the car was being used because Kubes was in the process of unloading his equipment from the vehicle. The court rejected this argument, concluding that at the time of the accident Kubes had turned aside from the unloading and was playing a game. The court stressed a “common sense” approach should be used in determining whether or not the negligent act was a reasonable and natural consequence of the use of the automobile, within the contemplation of the parties to the insurance contract.

Using a common sense approach we can reach no other conclusion than that the vehicle in the present case was not being used. The gun that caused the injury was not being loaded into the car; it had been stored there since the morning hunt. Timothy Cox was not “unloading” the gun from the car in the usual sense of the word; he simply picked it up to demonstrate his point about robbing a bank. Although he intended to replace the gun back into the vehicle, at the moment of the accident, he, like the boy in the Bruno case, was engaged in “horseplay” with Keith Tolleson. By no stretch of the imagination can it be said that it was within the contemplation of the parties to the insurance contract that a person standing several feet from the car, playing around with a gun that had been stored in that car, would be “using” the vehicle.

For these reasons, we conclude the trial court did not err in dismissing the case as to State Farm Automobile Insurance Company and Prudential Property and Casualty Insurance Company. The judgment is affirmed. Appellants are to pay all costs.

AFFIRMED.

      . Also named as a defendant was Wilcox’s employer, the State of Louisiana.

      . The elaborate "arising-out-of-use" test enunciated in Baudin was disapproved in Carter v. City Parish Government, Etc. 423 So.2d 1080 (La.1982), rehearing denied 1982.

      . In Carter, supra, the court criticized this approach as relying too heavily on proximate cause concepts "... which are not very helpful to the legal cause inquiry and not relevant to the use of the automobile question.” Although this may be true under some circumstances, here the same result obtains under either proximate cause or duty-risk concepts.


text:
    Brian P. CHIASSON v. LAFOURCHE PARISH COUNCIL.
    No. 83 CA 1139.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Jeffrey M. Boudreaux, of Chiasson & Boudreaux, Thibodaux, for plaintiff-appel-lee Brian P. Chiasson.
    Coleman T. Organ, Metairie, for defendant-appellant Lafourche Parish Council.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The primary issues in this worker’s compensation suit are the existence and duration of the plaintiff’s disability.

Plaintiff, Brian P. Chiasson, was formerly employed by defendant, the Lafourche Parish Council, as a maintenance helper. During the course of this employment on July 6, 1982, he sustained an injury to his back while lifting and carrying a heavy electric motor. That afternoon he - began experiencing pain in his back, which continued to worsen that night. The next day he reported his injury to defendant and sought medical attention from Dr. Obie Naul, a general practitioner. Following an examination, plaintiff was prescribed muscle relaxers and advised not to return to work until July 12, 1982.

On July 12, 1982 plaintiff returned to work. That evening for the first time he began experiencing sharp pain in his leg, in addition to back pain. He worked the remainder of the week in pain, but did not return the following week.

Upon his physician’s recommendation, plaintiff saw a therapist for approximately two weeks. Next, he was referred to Dr. Neil Maki, an orthopedist, who initially examined him on July 30, 1982. All of Dr. Maki’s findings on this date were essentially normal, except for some hamstring tightness in plaintiff’s right leg. Based upon these findings and plaintiff’s complaints, Dr. Maki diagnosed his condition as a lum-bosacral strain and advised him not to return to work until further evaluation. Plaintiff was put on a conservative care program and prescribed additional medication.

Dr. Maki saw plaintiff on several occasions thereafter, continuing him on the same treatment except for the additional recommendation that he see a physical therapist. By September 20,1982 Dr. Maki believed plaintiff was neurologically intact, even though he continued to exhibit an objective finding of slight hamstring tightness. He felt plaintiff was able to return to work on light duty, provided he did not climb ladders or lift objects weighing over thirty pounds. By October 20, 1982 Dr. Maki stated plaintiff could return to work and advance to his regular working status.

Plaintiff attempted to return to work shortly thereafter, but was able to remain only a few hours because of pain. Claiming he was unable to work because of this pain, he requested defendant allow him to obtain a second medical opinion. Pursuant to this request, defendant scheduled plaintiff to see Dr. Dexter Gary, an orthopaedic surgeon, on November 1, 1982. Based upon his examination of plaintiff on this date, as well as a review of his x-rays and CAT scan results, Dr. Gary was of the unqualified opinion that plaintiff could return to work.

On the basis of this report and the earlier one from Dr. Maki, defendant terminated plaintiffs compensation benefits effective November 12, 1982, and advised him his employment would also be terminated unless he returned to work by November 15, 1982. Plaintiff returned to work for one day only on November 19, 1982. Although he remained on the job the entire day, he was in substantial pain. He has not worked since that date. Defendant terminated his employment on December 3, 1982.

Subsequently, plaintiff filed suit alleging defendant arbitrarily and capriciously terminated his compensation benefits. Following trial on the merits, a judgment was ultimately rendered in favor of plaintiff, finding him to be temporarily totally disabled. Defendant was ordered to reinstate plaintiffs compensation benefits of $144.00 per week, retroactively from the date of termination through the duration of his disability, plus legal interest, etc. The trial court refused plaintiff’s demand for penalties and attorney’s fees. Defendant has taken a suspensive appeal which plaintiff answered, requesting an award of penalties and attorney’s fees.

Defendant argues the trial court erred in according more weight to lay testimony presented by plaintiff than to the medical evidence presented. The actual issue raised by this argument is whether or not plaintiff has sustained the burden of proving his claim by a preponderance of the evidence.

A worker’s compensation claimant is considered totally disabled if he is unable to engage in any gainful employment without suffering substantial pain. La.R.S. 23:1221; Lattin v. Hica Corporation, 395 So.2d 690 (La.1981); Vernon v. Aetna Life and Cas. Ins. Co., 442 So.2d 674 (La.App. 1st Cir.1983). A claimant also is considered totally disabled under the odd-lot doctrine if he is unable, because of physical impairment and other factors, such as mental capacity, education and training, to perform any services other than those which are so limited in quality or dependability that a reasonably stable market for them does not exist. Lattin v. Hica Corporation, supra; Vernon v. Aetna Life and Cas. Ins. Co., supra. The odd-lot doctrine is applicable to substantial pain cases because being able to work only with such pain limits appreciably the types of work available to a claimant and diminishes greatly his competitiveness in the labor market. Id.

A claimant in a worker’s compensation proceeding must prove to a “legal certainty” and by a “reasonable preponderance of the evidence” the nature and extent of his disability. Thornell v. Payne and Keller, Inc., 442 So.2d 536, 543 (La.App. 1st Cir.1983). The issue of whether or not plaintiff has met this burden must be determined by examining the totality of the evidence, including both lay and medical evidence. Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975), rehearing denied 1975; Thornell v. Payne and Keller, Inc., supra.

The medical evidence in the present case is somewhat limited. The deposition testimony of Dr. Maki and Dr. Gary indicates both thought plaintiff capable of returning to work on full duty by November, 1982. However, neither doctor examined plaintiff following his last attempt to return to work or expressed any opinion as to his condition at the time of trial. Furthermore, Dr. Maki, plaintiffs treating physician from July to October, indicated plaintiffs complaints were consistent with his findings and the injury sustained by plaintiff. He further stated that he believed plaintiffs complaints of pain were genuine.

Additionally, extensive lay testimony was presented by plaintiff, his relatives and friends, as to the nature and degree of pain he experiences and the resulting curtailment of his activities. According to this testimony, plaintiff has suffered persistent and substantial pain in his back and right leg, and occasionally in his left leg, from the time of his injury until trial. He is able to sit or stand only for short periods of time before experiencing pain, and is unable to drive or perform simple tasks without pain. He is unable to even walk without pain. Additionally, he no longer is able to pursue his previously active interest in hunting and fishing.

Plaintiff testified his pain has worsened since the time of his injury, particularly on the three occasions when he attempted to return to work. This testimony was at least partially corroborated by the testimony of his supervisor, Edward Savoie, Jr., that on each of these occasions plaintiff complained of pain either while working or at the end of the day. Mr. Savoie also testified that plaintiff, who was a good worker before his injury, appeared stiff and in pain on the earlier two occasions when he returned to work. The mere fact plaintiff may have done some work on these occasions is not determinative of the issue of disability, since he testified he was able to work only with substantial pain. See Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980); Vernon v. Aetna Life and Cas. Ins. Co., supra.

Plaintiff, who is twenty-four years old, has a high school education but no special training in any area. All of his previous work experience has been in jobs requiring manual labor as a necessary component thereof.

The trial court found the testimony of plaintiff and his lay witnesses, as to the pain suffered by plaintiff, to be highly credible. Lay testimony has great probative value in establishing both the existence of pain and inability to work. See Tantillo v. Liberty Mutual Insurance Company, supra. It is the trial court’s function to determine the weight to be accorded the medical and lay testimony. Woods v. Petroleum Helicopters, Inc., 415 So.2d 978 (La.App. 1st Cir.1982). Since the physical inability of a worker’s compensation claimant to return to work due to substantial pain is a question of fact, we will not disturb the trial court’s determination unless clearly wrong. Patin v. Continental Casualty Company, 424 So.2d 1161 (La. App. 1st Cir.1982), writ denied, 429 So.2d 145 (La.1983). Upon a review of the record, and in light of the trial court’s evaluations of credibility, we find no manifest error in the trial court’s conclusion that the limited medical evidence and extensive lay testimony support a conclusion that plaintiff is totally disabled. See Babineaux v. Continental Oil Co., 407 So.2d 1323 (La.App. 3rd Cir.1981); Lovisa v. Employers Ins. of Wausau, 343 So.2d 390 (La.App. 4th Cir.1977).

Defendant also argues the trial court erred in awarding plaintiff compensation benefits for the duration of his disability rather than for a fixed time under La. R.S. 23:1222. La.R.S. 23:1221(1) provides that an employee suffering from a temporary total disability should receive compensation benefits during the period of such disability. However, under La.R.S. 23:1222, as it existed at the time of plaintiff’s injury, a trial court had the discretion to award benefits for a fixed term instead, based upon the probable duration of a plaintiff’s disability. A trial court has much discretion in determining the length of time for which compensation benefits are to be awarded. Coleman v. Crown Zellerbach Corp., 421 So.2d 300 (La.App. 1st Cir.1982). We find no abuse of discretion herein, particularly since there is no indication in the present case of the probable duration of plaintiffs disability.

In his answer to this appeal, plaintiff claims the termination of his benefits by defendant and its refusal to reinstate payments was arbitrary, capricious and without probable cause, entitling him to an award of penalties and attorney’s fees under La.R.S. 23:1201.2, as it existed at the time of his injury. A plaintiff bears the burden of proving his employer acted arbitrarily and capriciously in failing to pay benefits due. Coleman v. Crown Zellerbach Corp., supra. An award of such penalties and attorney’s fees is precluded when the employer asserts a good faith defense. Id. An employer’s refusal to pay compensation benefits is not arbitrary and capricious conduct sufficient to justify an award of penalties and attorney’s fees, when based upon medical information that an employee is fit to return to work, even if subsequent events prove this conclusion of fitness to be incorrect. Id.

Defendant was informed by two physicians that plaintiff was capable of returning to work. Defendant’s reliance upon this medical information is a good faith defense. We find no manifest error in the trial court’s determination that the evidence does not support an award of penalties and attorney’s fees.

In his answer, plaintiff also requests the costs of this appeal be assessed against defendant and that both appeal costs and the trial court costs previously assessed against defendant be fixed in a specific dollar amount, pursuant to La.R.S. 13:5112. We agree La.R.S. 13:5112 required the trial court to assess costs against defendant in a fixed dollar amount. However, the failure to do so is a harmless error. Jones v. Recreation and Park Commission, Etc., 395 So.2d 846 (La.App. 1st Cir.) writ denied, 400 So.2d 1379 (1981). To rectify same, we amend the provisions of the judgment as they relate to court costs to provide that defendant be condemned to pay same in the amount of $375.00. In all other respects the judgment of the trial court is affirmed.

Costs on appeal, in the amount of $50.00, are assessed against defendant-appellant.

AMENDED IN PART AND AFFIRMED.

      . We note that La.R.S. 23:1201, et seq. was amended by Act 1 of 1983, 1st Ex.Sess. However, we have applied the law as it existed on the date of plaintiff’s injury, since the application of the amended provisions herein would affect substantive rights arising prior to their July 1, 1983 effective date.

      . La.R.S. 23:1222, as amended by Acts 1983, 1st Ex.Sess., No. 1, § 1, (eff. July 1, 1983), no longer provides as such.


author: REDMANN, Chief Judge.

text:
    FARNSWORTH SAMUEL, LIMITED v. Adolph J. GERHOLD, Jr. et al.
    No. CA 1105.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Anthony M. DiLeo and Gerard E. Wim-berly (Stone, Pigman, Walther, Wittmann & Hutchinson), New Orleans, for plaintiff.
    Bruce G. Reed (Reed & Reed), and Leonard L. Levenson (Levenson & Bonin), New Orleans, for defendants.
    Arthur L. Ballin, New Orleans, for Real Estate Board of New Orleans, Inc., amicus curiae.
    Before REDMANN, C.J., and BARRY and KLEES, JJ.
   REDMANN, Chief Judge.

We affirm the dismissal on the merits of a real estate broker’s claim for a commission on a transfer of property. A written listing agreement gave plaintiff the “exclusive right to sell” and a commission on “any agreement to sell or exchange.” We find no error in the trial judge’s conclusion that parol evidence shows that that wording was not intended to apply to the transfer that occurred.

The questions are whether parol evidence was admissible and, if so, whether that evidence defeats the applicability of the quoted language under our circumstances. We answer yes to both questions.

We do not decide but assume the enforceability of the owners’ promise in the listing contract, notwithstanding the contract’s failure to contain any reciprocal promise by the broker. We also do not decide but assume, as plaintiff and amicus urge, that the contract’s provision for commission on any sale (whether or not produced by the broker) is not eliminated, but merely limited, by contemporaneous agreements that commissions will not be due under agreed circumstances. We further do not decide but assume that a sale by one co-owner to another is a sale of the property within the meaning of the contract. We nevertheless affirm.

We reject plaintiff’s contention that parol should not have been admitted. The standard recital of inadmissibility of parol to vary the terms of a written contract excepts cases of fraud or mutual mistake. Two of plaintiff’s agents testified that in fact the parties did agree that no commission would be due if a sale were made to someone who had previously “viewed” the property (although they differ with defendants on some aspects of this agreement). One of them testified that they had also agreed with defendants that the listing agreement would not apply, or would “be no problem,” in the event of “foreclosure or imminence of foreclosure” of a mortgage on the property. That testimony shows mutual mistake in the written agreement’s recital that commission is due on any sale.

The parties thus contemporaneously agreed to at least two cases in which no commission would be due, namely sale to persons who had previously viewed the property and “foreclosure or imminent foreclosure” of mortgage. The trial judge may also have concluded, in the reasonable exercise of his credibility evaluation function, that a third category was “specifically” agreed, namely that of sale to a co-owner, despite the denial by one agent whose credibility the trial judge expressly questioned.

The record supports the factual conclusion that “imminence of foreclosure” resulted in the transfer that occurred, in which the two listing co-owners sold their interest to the non-listing, third co-owner.

The three co-owners’ testimony is that, after a period of substantial losses while loan payments were $6,000 and income only $3,000 a month, they knew they had to sell the property. They let interested brokers show it. Two of the co-owners either agreed to, or were given an oral option to, take over the third’s interest, when disagreement developed (one of the two and the third were not even speaking to each other). Thereafter these two dealt with two of plaintiff’s agents, who were aware that defendants needed to sell the property as quickly as possible. An attorney was demanding and continued to demand payment in full of a second mortgage, threatening foreclosure. All three co-owners faced the possibility not only of loss of their “equity” in the property but of further personal liability as well, if foreclosure occurred but did not satisfy all debt on the property. Three months passed after the property was listed with plaintiff, during which plaintiff never produced a single offer. Under all these circumstances, and especially in view of plaintiff’s apparent inability to produce a sale to save the co-owners from foreclosure, it is fair to say that foreclosure was “imminent.” The two listing co-owners were unable to avoid foreclosure by selling the property (having not a single offer) or by borrowing money. They had no escape from imminent foreclosure until the third co-owner was able to borrow sufficient cash from his father to pay the debt on the property. The two co-owners’ sale of their interest to the third co-owner was the result of the “imminence of foreclosure.”

We cannot say that the trial judge erred in his conclusion that this sale was not covered by the written contract’s provision for a commission on “any” sale, for that provision did not correctly state the agreement of the parties. The evidence supports the conclusion that this sale was among those that the parties agreed would not result in a commission.

Affirmed.


text:
    In the Matter of Sandra Thibodeaux ROBERTS et vir.
    No. CA-1243.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Charles M. Stevenson, Chalmette, for plaintiff-appellant.
    Before REDMANN, C.J., and GARRISON and WARD, JJ.
   REDMANN, Chief Judge.

A mother appeals from a judgment that by its terms corrected an error in a consent judgment, thereby retroactively reducing child support from $300 to $150 every two weeks and refusing her an award for the amount by which the father had underpaid the amount of the consent judgment.

The testimony shows that the father’s only income was unemployment benefits of $205 a week. The intent of the father’s lawyer (and, he testifies, of the mother’s then lawyer as well) was to consent to a judgment for $300 a month, payable in two installments of $150 each. The mother’s then lawyer drew up the judgment reciting $300 every two weeks. The father’s lawyer did not read the judgment carefully but merely signed it and filed it with the court.

The father testifies that he noticed the error on receipt of a copy of the judgment and brought it to his lawyer’s attention immediately. His lawyer told him he would “take care” of it. The father therefore continued to pay $150 every two weeks.

The mother argues that the trial judge’s authority under La.C.C.P. 1951 to alter the phraseology of the judgment or to correct errors of calculation does not permit a change from $300 to $150 every two weeks. She argues that that is a change in substance, not permissible after the judgment becomes definitive; McGee v. McGee, 157 So.2d 312 (La.App. 4 Cir.1963); Hebert v. Hebert, 351 So.2d 1199 (La.1977).

Yet a judgment for child support, even after appeal time has passed, is always subject to reduction or increase as to the future. Such a judgment becomes definitive installment by installment. Thus the March 30, 1983 judgment here involved was no longer appealable as of May 10, 1983 when the wife sought enforcement of the $150 per installment underpayment. But it was then definitive only as to the past due installments from March 11 (the judgment provided they then began) through May 6. It is well arguable that the trial judge had no authority under C.C.P. 1951 to correct the error in the consent judgment insofar as those past-due installments are concerned.

The evidence clearly preponderates, nevertheless, that the consent judgment was the result of a mistake on the part of both of the attorneys who signed it to evidence the consent of their respective clients.

If the trial judge had made an award expressly for the $750 due under the mistaken consent judgment, he could have “for good cause,” La.R.S. 9:305, refused to award attorney’s fees. He could in any case have reduced future support payments to $150 every two weeks. And, by authority of C.C.P. 862, under the peculiar circumstances of this case, he could have reduced child support to zero for the first five two-week periods following his judgment, on the basis that that amount would be in effect supplied by the father by the $750 that the mother was to collect from the father for no reason other than the common mistake of the parties. We would have affirmed such a judgment. The judgment appealed from reaches substantially the same result, notwithstanding the objection that its form appears to modify a judgment already definitive as to five installments when the rule to make executo-ry was filed.

Affirmed.


text:
    STATE of Louisiana v. Donald MANCINI.
    No. K 1996.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Writ Denied May 25, 1984.
    Harry F. Connick, Dist. Atty., Rick Kelly, Asst. Dist. Atty., New Orleans, for the State.
    Bernard E. Burk, New Orleans, for defendant.
    Before REDMANN, C.J., and AUGUSTINE and LOBRANO, JJ.
   REDMANN, Chief Judge.

On the state’s application we review a quashing of a charge that defendant committed obscenity by intentionally exposing the genitals of an on-duty vice-squad officer inside a locked “peep show” booth in which no one else was present.

La.R.S. 14:106 A(l) declares:

“The crime of obscenity is the intentional:
“(1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.”

The trial judge reasoned that the legislative intent of the statutory wording “the” genitals is the exposer’s own genitals (at least in this context), and that a locked booth is not a public place within the meaning of the statute as interpreted by State v. Walters, 440 So.2d 115 (La.1983).

We affirm. In other contexts (e.g., in a “show”; or on the street with another person of the same intent), an exposer of another’s genitals might be guilty as a principal, R.S. 14:24, to the other’s crime of exposure of “the” genitals. But here the police officer was acting on official duty and cannot be held to have committed a crime.

On the basis of the acts charged, therefore, defendant neither committed not procured another to commit the crime of obscenity within R.S. 14:106 A(l). The charge was correctly quashed.

Affirmed.


author: GULOTTA, Judge. BARRY, Judge,

text:
    STATE of Louisiana v. Raymond JASMIN.
    No. KA-1336.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for appellee.
    Dwight Doskey, Walter L. Sentenn, Jr., Orleans Indigent Defender Program, New Orleans, for appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

Defendant appeals his conviction and sentence of three years at hard labor with credit for time served for violation of LSA-R.S. 14:95.1, illegally possessing a firearm and a concealed weapon after having previously been convicted of a felony.

In his sole assignment of error, defendant requests this court to review the record for errors patent and to reverse his conviction and sentence.

The only error patent in the record is the trial judge’s failure to impose a fine in addition to the jail sentence imposed as required by LSA-R.S. 14:95.1.

We were confronted with this issue in State v. Calvin L. Jones, 445 So.2d 26 (La.App. 4th Cir.1984), where we recognized that if we were to remand the matter to the trial court for resentencing in accordance with the statute, the remand would be to the defendant’s detriment. As in Jones, in the instant case the state seeks only an affirmation of the verdict and sentence. Because the defendant alone has appealed, however, we review only those patent errors favorable to him, to avoid “providing a chilling effect on defendant’s exercise of his right to appeal.” See State v. Napoli, 437 So.2d 868 (La.1983) and State v. Jones, supra.

Accordingly, we decline to remand this matter to the trial court for resentencing, despite recognition of the error.

Our examination of the remaining documents in the record does not disclose additional errors patent. Upon review of the 62 page transcript of the judge trial, in accordance with State v. Raymo, 419 So.2d 858 (La.1982), we conclude there was sufficient evidence upon which a rational trier of fact could find defendant guilty beyond a reasonable doubt.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.

BARRY, J., concurs and assigns reasons.

BARRY, Judge,

concurring.

The record shows the defendant did not receive the statutorily mandated sentence. Surely this oversight occurred because of the trial court's heavy docket.

Imposition of sentence is a routine procedure. To allow a defendant to avoid “paying his debt” in full imposes a purely technical barrier never contemplated by our legislature. Moreover, defendants in adversary criminal cases routinely appeal unfavorable results and appellate review doesn’t have any “chilling effect” on their decision to appeal.

I don’t agree that our correcting an illegal sentence is enhancing that sentence. But because of State v. Napoli we have no alternative but to close our eyes to this boo-boo.

      . LSA-R.S. 14:95.1(B) provides as follows:
      “Whoever is found guilty of violating the provisions of this section shall be imprisoned at hard labor for not less than three nor more than ten years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars”.

      . On January 6, 1984, the Louisiana Supreme Court granted writs, without dissent, in State v. Jackson, 443 So.2d 1123, on defendant's assignment of error that the First Circuit had erred in effectively enhancing defendant’s sentence by amending the sentence to provide that it was to be served without benefit of parole, probation or suspension. In Jackson, as in the instant case, defendant alone had appealed the exces-siveness of the sentence and the State had not raised the sentencing error.


author: GULOTTA, Judge.

text:
    STATE of Louisiana v. Steven M. SIGUR.
    No. KA-1146.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for appel-lee.
    M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   GULOTTA, Judge.

As a multiple offender, defendant appeals his conviction and sentence to ten years with credit for time served for aggravated battery, LSA-R.S. 14:34 and LSA-R.S. 15:529.1. In his sole assignment of error, defendant requests the court to review the record for errors patent, and to reverse his conviction and order a new trial.

Having examined the documents and the record, we find no errors patent. Upon review of the 148 page transcript of the judge trial, in accordance with State v. Raymo, 419 So.2d 858 (La.1982), we conclude there was sufficient evidence upon which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.

      . Defendant, charged by a bill of information with a violation of LSA-R.S. 14:34, was sentenced by the trial judge to eight years at hard labor. After the State subsequently filed a multiple bill of information, the trial court then vacated the previous sentence and resentenced defendant to serve ten years with credit for time served under LSA-R.S. 15:529.1 of the Habitual Offender Law.


author: SCHOTT, Judge.

text:
    Latif SALEM, et als. v. Wilfred MAISE.
    No. CA 1382.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      Anthony S. Taormina, Metairie, for plaintiffs-appellees (Subha Farhoud and Husni S. Farhoud).
    Roger R. Roy and Roger M. Denton, Metairie, for defendant-appellant.
    Before SCHOTT, AUGUSTINE and WILLIAMS, JJ.
   SCHOTT, Judge.

This case arose out of a proposed sale of a grocery business from Wilfred Maise, defendant, to Latif Salem, plaintiff. Subsequent to the signing of an agreement to purchase and sell between these parties, plaintiffs Mr. and Mrs. Husni Farhoud came forward as Salem’s undisclosed principals. They arranged with defendant to take immediate possession of the store pri- or to the passage of an act of sale and paid him $18,000 representing the balance of the cash portion of the purchase price. However, the sale was never passed, and Maise repossessed the property. The Farhouds sued for $20,000 consisting of the above mentioned $18,000 and $2,000 deposited for them by Salem when he signed the agreement to purchase and sell; and Salem sued for $895 for a check given by Maise to the Farhouds and cashed for them by Salem. Maise reconvened for the real estate commission he incurred and for loss of business profits and inventory while the Far-houds were in possession. From a judgment in favor of plaintiffs on the main demand for $20,895 and dismissing Maise’s reconventional demand he has appealed. The first issue is whether Maise is entitled to a forfeiture of the deposit made by Salem in connection with the agreement to purchase and sell. The other issues involve the facts concerning Maise’s reconventional demand and some evidentiary rulings made by the trial court in that connection.

The agreement to purchase and sell was signed by Salem and Maise on July 9, 1976. It’s object was immovable property at 401 Adams Street in New Orleans with the stock and fixtures of “Bill’s Grocery.” The price was $42,000 consisting of $21,000 cash and the balance of $21,000 to be a mortgage note payable in monthly installments of $266. The sale was “to be passed before Vendor/Agents, Notary, at any time after July 25, 1976, and no later than August 25, 1976.” A deposit of $4,000 was called for, but Salem deposited $2,000 which was accepted by the real estate agent, John A. Stassi. The agreement also provided:

“In the event the purchaser fails to comply with this agreement within the time specified the seller shall have the right to declare the deposit ipso facto, forfeited, without formality beyond tender of title to purchasér, or the seller may demand specific performance.
In the event the deposit is forfeited, the commission shall be paid out of this deposit, reserving to the seller the right to proceed against the purchaser for the recovery of the amount of the commission.
If this offer is accepted, seller agrees to pay the agent’s commission of 6% which commission is earned by the agent when this agreement is signed by both parties .... ”

Shortly after the agreement was signed the Farhouds who were Salem’s parents-in-law came on the scene and began to negotiate with Maise for early occupancy of the building and business. It was now understood that Salem had been acting in their behalf and they were the ones who would take title and operate the business. On July 13, 1976, the Farhouds gave Maise a cashier’s check for $18,000 and two notes signed by Husni Farhoud, one for $21,000 payable on demand, and the other for $1,000 payable in sixty days. The Far-houds then took possession although no act of sale was passed and no other document was ever signed by the Farhouds.

On August 2, 1976, the real estate agent notified the parties that the act of sale was to be passed at 2 PM on August 10 in the offices of John A. Stassi 2nd, and Maise presented himself there with the two notes which were paraphed “ne varietur” for identification with an act of credit sale prepared for the signature of Maise and Husni Farhoud, as purchaser. There is a conflict of testimony among the witnesses as to why the Farhouds did not show up at the sale, but at this point in time there was no indication that they did not intend to go through with the transaction. It is clear that the Farhouds, who were Palestinian immigrants unable to read or write English, were laboring under some misconceptions as to the status of the affair. They seemed to think that the sale had been completed and did not understand the necessity of confecting a formal act of sale.

In any event, whatever rights Maise had to the deposit of $2,000 had to flow from the agreement to purchase and sell alone. Under its terms the purchaser had until August 25 to take title and forfeiture of the deposit was conditioned upon the seller tendering the title to the purchaser. Maise contends that the Farhouds demonstrated a clear intention not to take title so that a formal placing in default would have been a useless gesture as in Morrison v. Fineran, 397 So.2d 838 (La. App. 4th Cir.1981). But the record does not show that'the Farhouds had given any indication before August 25 that they would not take title. On the contrary they continued to operate the business during this period. In any event, the only purchaser involved at this time was Latif Salem. The Farhouds had never signed an agreement to purchase this property. Thus, it was incumbent upon Maise to tender title to Salem in order to forfeit Salem’s deposit. Salvant v. Fritchue, 379 So.2d 752 (La.App. 4th Cir.1980); Heatherley v. Rosenberg, 372 So.2d 766 (La.App. 4th Cir.1979). All of Maise’s arguments with regard to the $2,000 deposit revolve around the Farhouds’ conduct and the legal effect of that conduct on the agreement he had with Salem. Contracts involving real estate must be in writing, C.C. Arts. 2275, 2440. In the absence of a written document connecting the Farhouds with this real estate transaction their conduct would not provide a basis for Maise’s right to forfeit Salem’s deposit.

Next, we consider the trial court’s judgment in plaintiff’s favor for the $18,-000 paid to Maise when they took possession. At the time this was paid both parties were under the impression that a sale would take place and they considered the payment as an early payment of the price in advance of the sale in exchange for early occupancy. When the agreement to purchase and sell expired with neither party taking the necessary steps to enforce it all parties were entitled to be restored to their original positions. Like Salem who was entitled to his deposit, Maise was entitled to repossess the premises, and the Far-houds were entitled to their $18,000.

Finally, the record supports the trial court’s award of $895 on Salem’s principal demand. The Farhouds testified that Maise accommodated them on August 11 by purchasing from them this amount of food stamps because they were not yet licensed to deal in food stamps. Salem cashed this check for the Farhouds and deposited it in his account. The check was returned because of an incomplete signature. Maise claimed that he was in the process of writing the check when the Far-houd’s insisted on cash for the food stamps, and he gave them cash. He speculated that the Farhouds scooped up his check with the cash. The trial judge apparently disbelieved Maise on this point and no basis exists for this court to substitute our own credibility call for the trial court’s. We have thus concluded that the judgment on the principal demand is correct and turn to Maise’s reconventional demand.

By his reconventional demand Maise sought recovery for the real estate commission he paid Stassi, loss of profits for the two months the Farhouds had possession of the store, and loss of inventory and stock while they had possession. As to the commission, it follows from our previous discussion that Salem was the only potential obligor for the commission other than Maise since the Farhouds were not parties to the agreement. Under the plain provisions of the agreement Maise owed the commission and his failure to put Salem in default precludes his collection of it from Salem.

Whether entitled as a matter of law or not to recover for lost inventory Maise failed to carry his burden of proof to prove such a loss. He attempted to introduce inventories taken by an outside company, Inventories Unlimited, Incorporated, on July 3 and September 10, 1976, to show that the inventory had dwindled from $17,-000 to $9,000 during this period. In this court Maise argues that the trial court erred in refusing to admit this evidence because it was admissible under the business records exception to the hearsay rule. His position is unsound because he failed to show that the person who took the inventory was unavailable and that the information was a permanent record made in the ordinary course of his business. Newspaper Production Co. v. Perry, 404 So.2d 1331 (La.App. 2nd Cir.1981). Here the preparer was an independent company and there was no evidence that its services were routinely used by Maise in the ordinary course of his business. Furthermore, the figures are suspect on the basis of Maise’s testimony on cross examination. The trial court apparently disbelieved Maise’s testimony that the stock was depleted and, instead, believed the Farhouds who testified that there was more stock in the store when they left than when they took possession. Again, this credibility evaluation by the trial court will not be disturbed on appeal.

Next, we consider Maise’s claim for lost profits. Although he testified that he made $20,000 profit from the store in 1975 his income tax return reported a profit of only $6471. Tax returns for the previous four years reflected losses. Here again the trial court apparently concluded that the business was a losing proposition, and the record supports this conclusion.

Finally, we see no merit to Maise’s argument that the trial court erred in refusing to admit in evidence Salem’s 1981 conviction in the federal court for food stamp fraud so as to warrant some corrective action by this court. Even assuming that this was admissible evidence for impeachment purposes Salem’s testimony in the case was not a crucial issue. His connection with the principal demand was based on the written agreement to purchase and sell and his legal right to recover the deposit flowed from that agreement and Maise’s failure to put him in default. His connection with the reconventional demand was peripheral and Maise’s failure to recover was the result of a resolution of conflicts in his testimony as opposed to the Farhouds, not Salem’s.

Accordingly, the judgment is affirmed.

AFFIRMED.


text:
    Philip RAMOS, Jr. v. C.J. BLACHE, Administrator of the Office of Employment Security, Louisiana Department of Labor and Boland Marine and Manufacturing Co., Inc.
    No. CA 1607.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.

      James A. McGraw, Eddie G. Crawford, Denise A. Nagel, Baton Rouge, for defendant-appellee La. Dept, of Labor.
    Louis L. Robein, Jr., Robert H. Urann, Barker, Boudreaux, Lamy, Gardner & Foley, New Orleans, for plaintiff-appellant.
    Christopher P. Charlton, McCalla, Thompson, Pyburn & Ridley, New Orleans, for defendant-appellee Boland Marine and Mfg. Co., Inc.
    Before SCHOTT, AUGUSTINE and WILLIAMS, JJ.
   SCHOTT, Judge.

This is an action for judicial review of a decision of the Board of Review of the Office of Employment Security disqualifying plaintiff, Philip Ramos, Jr., for unemployment benefits. The issue is whether the law and evidence support the administrative determination that plaintiff voluntarily left his employment when work was available as opposed to plaintiffs contention that the work offered was unsuitable and his employer arbitrarily changed his working conditions. From a judgment of the district court affirming the decision of the Board of Review, plaintiff has appealed. We affirm.

Plaintiff, a journeyman boilermaker, has been employed by Boland Marine and Manufacturing Company, Inc. for many years. After June 10, 1982, he refused to work because Boland assigned him to a job in its shop instead of “outside work” on ships. Over the next two weeks plaintiff was offered inside work which he refused. Plaintiff was the outside steward of the local boilermakers union and, in the past, had been assigned outside jobs for the most part which were compatible with his union position. However, he was occasionally assigned inside jobs as well. Whether inside or outside the boilermaker’s work is similar and the salary, established by union contract, is the same. Boilermakers may be assigned by the employer wherever necessary. According to plaintiff Boland was discriminating against him because of his union activities and because of a previous arbitration award he won against Boland. According to Boland,' it made a valid management decision to promote company efficiency in making plaintiff’s work assignments.

Following a hearing before the Appeals Referee of the Office of Employment Security he found the facts as outlined above and concluded that plaintiff did leave his employment when work was available; he had the opportunity to follow his chosen vocation but disliked the particular assignment; his motives for refusing to work were entirely personal; his dissatisfaction with his assignments was not based upon substantial changes in wages or working conditions; Boland’s actions were not arbitrary or discriminatory; and plaintiff failed to prove good cause for his refusal to work.

Plaintiff does not dispute the fact that he was offered inside work and refused. But he insists that he was justified because inside work was not “suitable” in accordance with LSA-R.S. 23:1601(3). In support of this position he relies on Lykes Bros. Steamship Co., Inc. v. Doyal, 338 So.2d 594 (La.1976).

In the cited case the court held that the “available for work” condition for unemployment benefits set forth in R.S. 23:1600(3) means available for “suitable” work as prescribed by R.S. 23:1601(3). On the facts of that case the court concluded that there was entitlement because the available work offered to the plaintiff was not suitable. However, those facts are wholly distinguishable from those in the instant case. In Lykes plaintiff refused a work assignment on a vessel other than the one on which he had worked for some years previously, but a change of vessels would have a drastic effect on his tenured rights to reship on the first vessel. In the instant case there is no difference between inside work and outside work. The same skill is applied and the same wages are paid. The union contract makes no distinction between inside and outside work. It was simply a case of Boland requiring plaintiff to work in a particular location which had no effect on his employment rights. In the Lykes case the following statement at page 597 refutes his argument that the available work was not suitable:

“... the claimant cannot arbitrarily remove himself from available work by restricting his willingness to work to certain hours, types of work, or conditions, not usual or customary in the occupation, trade or industry.”

Plaintiff contends that inside work was not suitable because had he accepted it “he may have been forced to give up his position as outside [union] steward,” a position of responsibility and esteem. In the first place, the record does not support this assertion. On the contrary it is clear that no boilermaker is treated as an outsider or insider on an exclusive basis. While they may tend toward one or the other most of the time they all take the other assignments on occasion. Had plaintiff taken these inside jobs which were offered to him there is nothing in the record to suggest that he would never again get .outside on enough occasions to function as outside steward. Second, union stewardship is not a right flowing from plaintiff’s employment by Boland as were the tenured reshipment rights involved in the Lykes case. Boland had nothing to do with plaintiff’s appointment as steward. His union made that appointment and the assistant business agent of the union indicated that stewards are changed “from time to time for whatever reasons.” Thus, while plaintiff enjoyed being steward this was not a part of his job but a personal pursuit with his union and a situation which he would not necessarily keep in any event.

Next, plaintiff contends that his departure from Boland’s employment was not without good cause under R.S. 23:1601(1) contrary to the Referee’s determination. This contention is based on the argument that Boland arbitrarily deprived him of outside work in a discriminatory manner because plaintiff had just been reinstated to employment as a result of arbitration proceedings in May, 1982.

The grievance involved in those proceedings arose out of plaintiff’s being fired because he refused to do some welding in connection with an assignment on a ship. Plaintiff contended that as a boilermaker he could not be required to perform the work of another trade, while Boland contended that this welding was a minor part of plaintiff’s job incidental to the boilermaker’s trade. The arbitrator actually agreed with Boland on the principle but decided in favor of plaintiff on a technicality because of the posted company work rules. In any event, plaintiff was reinstated and was in the process of collecting his back pay when the assignments to inside work began. Plaintiffs position is that these circumstances compel the inference that Boland’s motive was to harass or get even with plaintiff. The Referee had the benefit of evaluating the credibility of Bo-land’s Industrial Relations Manager and other Boland supervisory personnel who denied any such ulterior motive for assigning plaintiff to inside jobs, and the Referee specifically concluded that plaintiff was not the victim of arbitrary or discriminatory treatment. Such a credibility determination may not be disturbed on judicial review;

Since the record amply supports the administrative determination that suitable work was available to plaintiff and that he left his employment without good cause connected with his employment the judgment of the trial court affirming the Board of Review’s decision is affirmed.

AFFIRMED.