text:
    Arthur Dixon COLLEY v. Diana Lee Day COLLEY.
    No. 83 CA 0139.
    Court of Appeal of Louisiana, First Circuit.
    June 28, 1983.
    Rehearing Denied Aug. 23, 1983.

      Glenn P. Marcel, Baton Rouge, for plaintiff-appellant, Arthur Dixon Colley.
    James D. Thomas, II, Baton Rouge, for defendant-appellee, Diana Lee Day Colley.
    Before COVINGTON, LANIER and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment of the Family Court, Parish of East Baton Rouge, maintaining custody of the minor child, Ashley Colley, with the father-appellant, Arthur Dixon Colley, subject to visitation on the part of the mother-appellee, Diana Lee Day Colley Oliva. Appellant appeals the visitation provisions of the judgment as being excessive. In answering the appeal, appellee maintains that the trial judge erred in not awarding her custody of Ashley.

At the outset, we note that the paramount consideration in child custody cases is the welfare of the child. Gulino v. Gulino, 303 So.2d 299 (La.App. 1st Cir.1974). Further, the trial judge’s discretion in custody matters is entitled to great weight and should not be disturbed unless it amounts to a clear abuse of discretion. Schmidt v. Schmidt, 393 So.2d 381 (La.App. 1st Cir. 1980).

Although appellant lists some five specifications of error, he is in essence complaining that the visitation award of substantially all summer, Easter, Thanksgiving and Christmas vacations every year amounts to divided custody. We agree. The judgment complained of appears as an appendix to this opinion.

Both parties to this action had remarried by the time the subject rule for custody was heard. Appellant and his new wife and step-daughter live in Baton Rouge, while appellee and her new husband reside in New York. The judgment, as handed down, allows appellee some one hundred and ten (110) days visitation per year. More important than the quantity of days allowed is the fact that the noncustodial parent has the child for every major holiday of the year, as well as the entire summer less three weeks. Additionally, the child is four and one-half years old and will have to fly between Baton Rouge and New York eight times per year unaccompanied by an adult. We are of the opinion that this arrangement is not within the best interests of Ashley.

In Ogden v. Ogden, 220 So.2d 241 at 244 (La.App. 1st Cir.1969), we noted that, "... visitation privileges accorded the spouse not having custody should never be so extensive or liberal as to constitute a divided authority or shared control of the concerned children.” In the recent case of Strong v. Trosclair, 423 So.2d 13 (La.App. 1st Cir. 1982), we found that a continuous two month summer visitation was an abuse of discretion based on the age of the minor and the distance to be traveled. In Strong, the custodial mother lived in Louisiana and the noncustodial father lived in Oklahoma, the child at the time was seven and one-half years of age. It is obvious that the distance to be traveled in this case is considerably longer, and the age of this child substantially less, than that found in Strong.

We find no merit in appellee’s argument that the trial court abused its discretion in not awarding custody to her, or alternatively, awarding joint custody. The evidence in this case is clearly sufficient, given the weight accorded trial court determinations in custody cases, to sustain the trial court’s determination. Additionally, appellee maintains that the trial court erred in limiting her telephone privileges, both to the Colley house and to the babysitter’s house. Again, based on the evidence, we feel that the trial court acted within the bounds of discretion.

Having determined that the visitation privileges afforded appellee were excessive to point of being an abuse of discretion, we now amend the judgment in the following respects. First, appellee is awarded summer visitation beginning July 1 and ending July 31 of every year. Second, this Court feels that it is important for Ashley’s future development that she spend some major holidays with each of her parents every year. Therefore, since the Christmas vacation is a two week period, and Thanksgiving and Easter one week each, it is ordered that appellee’s visitation should alternate between Christmas one year, and Easter and Thanksgiving the next year. Appellant will therefore have Ashley for Thanksgiving in 1983 and appellee will have Ashley for Christmas 1983. Third, we are of the further opinion that Ashley should be accompanied by appellee, or another adult chosen by appellee, when flying to and from New York until she reaches the age of ten years old. In all other respects, the judgment of the trial court is affirmed as handed down.

AMENDED AND AFFIRMED.

APPENDIX

“IT IS ORDERED, ADJUDGED AND DECREED that the rule for custody filed by Diana Lee Day Colley is dismissed, and that judgment be and it is hereby rendered maintaining the custody of the minor child, Ashley Colley, with the father, Arthur Dixon Colley, subject to visitation on the part of Diana Lee Day Colley Oliva as follows:

A.Summer of each year, beginning one week after the minor child, Ashley Colley, completes the school year, and ending two weeks prior to the beginning of the school year in the fall;

B. Two weeks at Christmas of each year, inclusive of Christmas Day, beginning on the second day or Monday after the school Christmas vacation begins, whichever is later;

C. One week at Thanksgiving each year, inclusive of Thanksgiving Day, commencing on the second day after school vacation and ending on the Sunday after Thanksgiving Day, except that, should the school Thanksgiving vacation be less than one week, Ashley shall be returned to the domicile of her father no later than 4:00 p.m. of the day immediately preceding the day that school recommences, commencing in 1983; for 1982, Thanksgiving visitation shall be Sunday to Sunday;

D. One week during Easter of each year, exclusive of Easter Sunday, commencing on the second day of the school Easter vacation, except that, if the school Easter vacation is less than one week, then the minor child, Ashley Colley, shall be returned to the domicile of the father no later than 1:00 o’clock p.m. on the day immediately preceding Easter Sunday;

E. Any other visitation the parties may agree upon.

When Ashley travels by air, the flight must be a direct flight and preferably she will be accompanied by an adult.

On any of the holiday visitations, in any event, the minor child, Ashley Colley, is to be returned to the domicile of the father no later than 4:00 o’clock p.m. of the day immediately preceding the day that school recommences, or earlier according to available plane schedules.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if visitation should be exercised by Diana Lee Day Colley Oliva out of town, the minor child, Ashley Colley, shall be picked up at the domicile of Arthur Dixon Colley by Diana Lee Day Colley Oliva or any other adult designated by Diana Lee Day Colley Olivia between the hours of 8:30 o’clock a.m. and 11:30 o’clock a.m. on the day visitation commences.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Arthur Dixon Colley shall supply adequate and substantial clothing for Ashley while she is visiting with her mother.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Arthur Dixon Colley shall supply Diana Lee Day Colley Oliva with his unlisted telephone number, and Diana Lee Day Colley Oliva shall be allowed to call Ashley to speak with her twice a week, on Monday and Thursday nights, preferably between 7:00 p.m. and 8:00 p.m., except with prior agreement. Arthur Dixon Colley, his agents, employees and representatives are specifically prohibited from thwarting Diana Lee Day Colley Oliva’s efforts to speak with Ashley. During the time that Ashley is visiting with her mother, Arthur Dixon Colley will have re-criprocal telephone privileges.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Diana Lee Day Colley Oliva is enjoined and prohibited from calling Mrs. Lois Byrd unless an emergency situation exists.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Diana Lee Colley Oliva, her agents, employees and all other persons claiming to act on her behalf are enjoined and prohibited from administering any drugs to the minor child, Ashley Renfroe Colley, not prescribed by any physician selected by Arthur Dixon Colley, or with the consent of Arthur Dixon Colley, except in an emergency situation, but only if the said Arthur Dixon Colley cannot be consulted prior to the said drug being obtained, or administered.

IS FURTHER ORDERED, ADJUDGED AND DECREED that Diana Lee Day Col-ley, her agents, employees, and all other persons acting or claiming to act on her behalf, are enjoined and prohibited from having the minor, Ashley Renfroe Colley, evaluated, tested or counseled by any psychologist, psychiatrist or social worker.”


source: Caselaw Access Project

author: KLEES, Judge.

license: Public Domain

text:
    Soula O’BANNON v. Dr. Robert AZAR.
    No. CA-0514.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.
    Rehearing Denied Aug. 23, 1983.

      Darken M. Jacobs, A Professional Law Corporation, New Orleans, for defendant-appellee.
    Paula Perrone, A Professional Law Corporation, New Orleans, for plaintiff-appellant.
    Before KLEES, AUGUSTINE and LO-BRANO, JJ.
   KLEES, Judge.

In this paternity action, the plaintiff filed suit to have the defendant declared the natural father of her minor child. In addition, the plaintiff sought child support from the defendant. The trial court held that the defendant was not the father of the child. The plaintiff appeals, contending that the trial court erred in its determination that the defendant was not the father of the child. The plaintiff also asserts that the trial court committed error during the trial when it ruled on certain evidentiary and procedural matters.

In our review of the voluminous record of this case, we conclude that the trial judge did not commit manifest error in his determination of non-paternity. Additionally, we conclude that the trial judge did not commit any reversible errors in his eviden-tiary rulings. For these reasons, the decision of the trial court is affirmed.

FACTS

The plaintiff and defendant met in 1979 while both were tenants at the Pier Eight Apartments in New Orleans. The record reflects that the parties met primarily in the parking lot grounds of the complex due to the fact that their cars were often parked in close proximity. Both parties admit to these limited facts, however, almost all other facts are in dispute.

Plaintiff testified that she and defendant went out on one date when he escorted her to a Mexican Restaurant in the French Quarter. Furthermore, she alleged that she and the defendant had sexual intercourse in the defendant’s apartment on three separate occasions, July 27,1979, August 3,1979 and August 21, 1979.

The defendant testified that he knew the plaintiff only as an assistant manager of the apartment complex. He stated that she frequently approached him with gossip concerning other tenants and she also discussed her own personal problems. Defendant denied that he ever went out on a date with plaintiff. Furthermore, he emphatically denied that he ever had sexual intercourse with the plaintiff. In support of this contention, the defendant offered, at trial, the sworn testimony of Dr. John Georgott who stated that the defendant was in San Francisco on July 27, 1979, one of the dates when the alleged sexual intercourse took place.

In addition, defendant argues that he could not possibly father a child due to the fact that he obtained a vasectomy which was performed by a physician and friend, Dr. Sharon West Doud. Defendant asserts that he obtained the vasectomy on April 7, 1979 in Westfield, New York. He explained at trial that he went to Dr. Doud in New York because he had a close personal and professional relationship with her and that he wanted to minimize the chance of anyone obtaining knowledge of the vasectomy.

The fact that defendant was contemplating a vasectomy was verified by Wilson Abraham, a close friend and associate.

Dr. Doud testified that she received a call from defendant in which he indicated that he had separated from his wife and desired a vasectomy. They proceeded to plan the operation for April 7, 1979, during a time when her husband would be away from home. She stated that she performed the vasectomy at her office in her home in Westfield, New York on April 7, 1979.

The seventeen-year-old daughter of Dr. Doud testified via deposition that she saw defendant in her home in New York and that she saw defendant and her mother go into the examining room in her home.

Dr. Bernard Jacobs testified that defendant came to see him on June 6, 1979. At that time, he examined defendant and observed what appeared to be scars from a vasectomy. He also took a sperm count from him in June and July of 1979. Both counts were negative for sperm. Dr. Jacobs further stated that in his opinion, it was impossible for defendant to father any child due to the vasectomy and negative sperm counts.

The plaintiff questions whether the vasectomy was actually performed in New York at the time stated by defendant. Plaintiff points out that defendant was unable to produce any independent documentary evidence which would substantiate his trip to New York. Plaintiff also produced as a witness Robert Doud, the former husband of Dr. Sharon Doud, who testified that he was at his home in Westfield, New York during the period of time when defendant supposedly had the vasectomy and that defendant did not come to his home to have a vasectomy performed.

The issue of whether or not defendant actually had a vasectomy became relevant in the fall of 1979. At that time, defendant, who had moved from the Pier Eight Apartments, was contacted by plaintiff. She informed him that she was pregnant and claimed that he was the father of the child. When the plaintiff was questioned regarding the reaction of defendant, she testified that he was “dumbfounded”.

Subsequent to this incident, defendant had a telephone conversation with Dr. Joseph Beilina, plaintiff’s gynecologist. The defendant testified that Dr. Beilina called him. Dr. Beilina could not remember who initiated the call. During the conversation, the general condition of plaintiff was discussed and Dr. Beilina recalled that defendant did not say anything to indicate that he was the father of the child.

On April 21, 1980, plaintiff was admitted to F. Edward Hebert Hospital for delivery. Shortly after the delivery of the child, a birth certificate was issued. On the certificate, the space for the name of the father was left blank. The defendant never signed the infant’s birth certificate nor did he pay any medical expenses in connection with the child’s birth.

In October of 1980, plaintiff filed a paternity suit. Blood tests were ordered by the court. The interpretation of these tests by the experts called during the trial are directly in conflict. The plaintiff called Dr. Leslie Ray Bryant, Jr., who was accepted by the court as an expert in paternity testing. This court, as did the trial court, notes the impressive credentials of Dr. Bryant as a paternity expert. After analyzing the HLA (Human Leukocyte Antigen) blood test results, Dr. Bryant was able to give the percentage of probability that the defendant is the natural father of the child. Dr. Bryant concluded that the probability of paternity was 99.91 per cent.

Dr. Andrew Hegre was commissioned to perform paternity testing for the defendant. The red blood cell typing showed approximately a 68% probability of paternity. However, according to Dr. Hegre the immu-noglobin testing showed exclusion factors which indicated that the defendant could not have fathered the child. Also, Dr. Hegre criticized the accuracy of the HLA test performed by Dr. Bryant.

Plaintiff asserts that due to the 99.91 percent probability of paternity found by Dr. Bryant, the trial court committed manifest error in its determination of non-paternity. We disagree.

If the blood test results are viewed in isolation, this argument might have merit. However, the test results must be weighed along with all other evidence presented at trial.

An obvious assumption underlying the HLA paternity test, or any test for that matter, is that the mother and putative father have engaged in sexual intercourse at least once during the period of possible conception.

Susan Spears, a close friend of the plaintiff, testified that she saw the plaintiff and the defendant talking in the parking lot. Ms. Spears stated that the plaintiff told her that she was going to dinner with the defendant. This is the full extent of her testimony regarding the relationship between the plaintiff and the defendant.

Gloria Parkam, another friend of the plaintiff, was called to testify. Under cross-examination, she admitted that she had never actually seen the plaintiff and the defendant together.

Chester Booth, a former tenant at the Pier Eight Apartments, testified that he knew both the plaintiff and the defendant, but that he never saw them together on a social basis.

DID THE TRIAL COURT ERR IN ITS DETERMINATION OF NON-PATERNITY

Considering the testimony of the above individuals, we find that the trial court was not presented with any concrete evidence to show even a slight romantic link between the plaintiff and the defendant.

The burden of proof required of the plaintiff is to establish paternity by a preponderance of the’ evidence. Succession of Washington, 308 So.2d 892 (La.App.1975). The trial court, after considering all of the conflicting testimony and after viewing the demeanor of the witnesses, concluded that the plaintiff failed to meet this burden. This court on appeal cannot disturb the trial court’s findings of fact unless we find that the trial judge committed manifest error. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

The trial court determined that defendant’s version of the facts was the more credible one. The defendant was able to produce a witness who placed him in San Francisco on one of the days of the alleged intercourse. Defendant was also able to produce two witnesses that supported his contention that he had a vasectomy performed on April 7, 1979. The testimony of Dr. Jacobs showed that defendant had negative sperm counts prior to the alleged dates of intercourse with the plaintiff. Dr. John Linder testified that defendant had a negative sperm count subsequent to the alleged time of intercourse. Dr. Hegre testified that according to one type of blood test, defendant was not the father of the child. Finally, defendant never did acknowledge in any way the child born to the plaintiff. These facts strongly support the trial court’s findings of non-paternity.

As further support, the defendant, in his brief, refers to the extensive history of health disorders of plaintiff. While the plaintiff’s medical records are suggestive of emotional “problems” experienced by her, we note that the trial judge did not refer to these “problems” in his Reasons for Judgment. The trial judge failed to find a direct correlation between the plaintiff’s health problems and the issue of paternity. We agree with his finding and in view of our holding below find it unnecessary to delineate the long medical history of the plaintiff.

Support for plaintiff is found solely in her testimony and in the testimony of Dr. Leslie R. Bryant, Jr. and Robert Doud. It is obvious from the record that the credibility of Robert Doud was highly questionable. The trial judge obviously and properly did not give much weight to his testimony. Dr. Bryant’s results are another matter and cannot be lightly dismissed, particularly due to his impressive credentials and scholarly testimony. However, given the conflicting testimony of Dr. Hegre and the fact that the plaintiff could not affirmatively show a romantic connection between herself and the defendant, we cannot say that the trial judge committed manifest error in making his decision.

PROCEDURAL ASSIGNMENTS OF ERROR

During the trial, plaintiff made a motion for the court to allow her to perform the same type of immunoglobulin tests that were done by Dr. Hegre. The court allowed her to have the test performed if the defendant would submit his blood. Defendant, however, refused to submit to the blood test. Plaintiff argues that the trial court erred in denying her motion to compel defendant to take the test.

The Uniform Act on Blood Tests to Determine Paternity, enacted in Louisiana under Revised Statute 9:396, provides as follows:

Notwithstanding any other provision of the law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveu, the court, upon its own initiative or upon request made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity against such party or enforce its order if the rights of others and the interests of justice so require.

Prior to trial, defendant’s counsel filed a Motion to Perform Blood Test to Establish Paternity and requested the court to order a hematologist to perform blood tests on defendant, plaintiff and the minor child. This motion was granted by the court and the blood tests were performed pursuant to the order. Because this order included defendant, this court is of the opinion that there was compliance with LSA—R.S. 9:396. Plaintiff’s counsel had access to defendant’s blood at that time to perform whatever tests she believed necessary. Defendant cannot be forced to submit to further testing of his blood as often as opposing counsel desires. We can find no error in the trial court’s action denying plaintiff’s Motion to Compel.

After the trial, but prior to judgment, plaintiff filed a Rule to Show Cause why the testimony of Dr. Hebert Poleski should not be admitted into evidence. His testimony was to include his findings on immuno-globulin series tests which he performed on the plaintiff and the minor child. According to plaintiff, this testimony would prove that Dr. Hegre’s findings on the same im-munoglobulin series tests were erroneous and could not be scientifically substantiated. This motion was denied by the trial court and plaintiff argues that the trial court erred in not allowing this testimony.

In the absence of a clear abuse of discretion, it is not error for a trial judge to refuse to reopen a case for additional evidence. Skipworth v. McElroy Metal Mill, Inc., 353 So.2d 1069 (La.App. 2nd Cir.1977).

To justify the granting of an application to reopen a case, prior to rendition of judgment, it must clearly appear that the applicant has used every effort within his means to procure the evidence before trial and, if there is doubt on the subject, it is to be resolved against the applicant. Richey v. Swink, 4 So.2d 749 (La.App. 2nd Cir. 1941).

There was sufficient opportunity to have Dr. Poleski conduct tests in order for him to testify as to the results during the trial, and even if he had, this court does not believe that the testimony of Dr. Poleski would have been sufficient to bring about a different result in the outcome of the trial.

Plaintiff further argues that the trial judge erred in not allowing her to cross-examine Dr. Sharon Doud, a witness she had called to the stand in her case-in-chief, and in not allowing Robert M. Doud to testify to any facts which would impeach Sharon Doud.

Plaintiff bases her contention on La.C. C.P. art. 1634 which states:

“Any party or his representative may be called as a witness and cross-examined by the adverse party without the latter vouching for his credibility, or being precluded from impeaching his testimony, and immediately thereafter the witness thus called may be examined or cross-examined to the extent otherwise permitted by law upon the subject matter of his examination in chief by such adverse party. The court may permit the recall and further cross-examination of the party or of his representatives as often as it deems such action to be in the interest of justice. ‘Representative’ as used in the paragraph above and in Article 1428(2) means an officer, agent or employee having supervision or knowledge of the matter in controversy, in whole or in part, whether or not he is in the employ of or connected with the party at the time his testimony is taken.”

We do not agree with the plaintiff’s position that Dr. Sharon Doud was a representative or agent of defendant which would allow her to invoke the use of this article. Neither their relationship of physician-patient nor as friends creates such a bond or agency as required.

When there is no indication that counsel has been surprised or dealt with hostility by a witness during direct examination, counsel is not entitled to impeach his own witness. State v. Redwine, 337 So.2d 1041 (La.1976). Plaintiff’s counsel failed to make any showing of surprise or hostility in Sharon Doud’s testimony. Plaintiff called Sharon Doud as her own witness and is thus bound by her testimony. Thus we conclude that the trial court was correct in not allowing her to impeach that testimony.

Plaintiff further argues that the trial court erred in not allowing the rebuttal testimony of Dr. David deJongh and Dr. Tom Lane.

Plaintiff called Dr. David deJongh as a witness during her case on rebuttal, informing the court that the testimony of Dr. Hegre east serious doubt on the reliability of the HLA testing. Dr. deJongh was to be presented as an HLA specialist to evaluate HLA testing and to rebut Dr. Hegre’s testimony. The trial court held that Dr. de-Jongh’s testimony would be repetitious because Dr. Bryant had conducted the HLA test and had testified as to his findings in the case-in-chief. The court stated that it would only allow an expert in the field of immunology to rebut the testimony of Dr. Hegre, and found that Dr. deJongh was not qualified as such. However, the court informed the plaintiff that she could call Dr. Bryant back to testify to reaffirm his findings.

La.C.C.P. art. 1631 states in pertinent part:

“The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.”

The admission of rebuttal evidence is largely within the discretion of the trial judge. Baltzar v. Missouri Pacific Railroad, 406 So.2d 324 (La.App. 3rd Cir.1981).

The proffer made by plaintiff’s counsel as to what Dr. deJongh would say if allowed to testify is exclusively concerned with the HLA testing. This material is either repetitive of Dr. Bryant’s testimony or information within Dr. Bryant’s expertise in the field of paternity. Nevertheless, upon examination of the proffered testimony, we conclude that based on the evidence in the record, the trial court would have reached the same conclusion had Dr. de-Jongh testified. Thus, we find that the trial court did not abuse its discretion by refusing to allow Dr. deJongh’s rebuttal testimony.

Dr. John Thomas Lane was also called to the stand by plaintiff’s counsel during rebuttal in an effort to rebut Dr. Hegre’s testimony. The court refused to recognize him as an immunologist and would not allow him to testify. For the same reasons expressed above, we conclude that the trial court did not abuse its discretion in refusing to allow Dr. Lane to testify on rebuttal.

Accordingly, we affirm the decision of the trial court dismissing plaintiff’s suit. All costs of this appeal to be borne by plaintiff.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    FREDRIC HAYES, INC., Plaintiff-Appellant, v. Herman O. ROLLINS, Jr., Defendant-Appellee.
    No. 83-67.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1983.
    Fredric G. Hayes, Lafayette, for plaintiff-appellant.
    Harris, Stampley, McKee, Bernard & Broussard, Gilbert E. Stampley, New Orleans, for defendant-appellee.
    Before DOMENGEAUX, CUTRER, and STOKER, JJ.
   DOMENGEAUX, Judge.

Fredric Hayes, Inc., (a law corporation) plaintiff-appellant herein, filed this suit against Herman 0. Rollins, Jr., defendant-appellee, seeking to recover $10,000.00 in attorney’s fees plus expenses pursuant to a contingency fee contract for legal services in connection with the defendant’s personal injury claim. The ease was submitted to the district judge on a stipulation of facts, wherein it was agreed by the parties that $325.00 was previously due to the plaintiff for representation of the defendant in a social security hearing in which disability benefits were recovered. The district judge thereafter rendered judgment in favor of the plaintiff for the $325.00 fee that was previously due, and in favor of the defendant on the claim for contingency fees and expenses. Plaintiff thereafter devolutively appealed to this court.

The facts designated by the parties are as follows: The plaintiff and the defendant entered into an employment contract in connection with defendant’s personal injury claim on January 17, 1975, whereby the plaintiff was to receive as compensation for its services one-third (⅛) of any recovery and was assigned an interest in the claim in accordance with the provisions of La.R.S. 37:21s. After suit was filed in Federal Court on the defendant’s claim, the plaintiff entered into a settlement agreement with the other parties to the action on October 2, 1978, in the amount of $30,-000.00. A settlement petition, as well as checks totaling $30,000.00 were received by the plaintiff. The federal suit was dismissed on January 4,1979, and has not been reinstituted since.

However, the defendant refused to sign the settlement agreement or to endorse the check. Rather, the defendant notified the plaintiff that he no longer desired to retain it as his attorney and that he would seek other counsel. The plaintiff thereafter instituted this suit.

In the district judge’s reasons for judgment, he denied the plaintiff recovery on its claim for a $10,000.00 contingency fee plus expenses, since he concluded that there had been no settlement of the defendant’s claim due to his refusal to execute the settlement documents or to negotiate the draft. The plaintiff argues on appeal that these conclusions of the trial judge were erroneous, and that the judgment rendered in favor of the defendant should thereby be reversed.

We are unable to agree with the plaintiff’s argument. The law is quite clear in our jurisprudence that a party’s counsel of record does not have authority to settle a client’s claim without his client’s “clear and express consent.” See Baker v. Purselley, 411 So.2d 553 (La.App. 1st Cir.1982); General Electric Credit Corporation v. Coleman, 408 So.2d 376 (La.App. 1st Cir.1981); Singleton v. Bunge Corporation, 364 So.2d 1321 (La.App. 4th Cir.1978). The record in this case is totally devoid of any evidence demonstrating that the defendant ever consented in any manner whatsoever to the settlement confected by the plaintiff. Thus, the district judge was correct in determining that there was no settlement of the defendant’s claim.

The case of Doucet v. Standard Supply & Hardware Company, 250 So.2d 549 (La.App. 3rd Cir.1971) cited by the plaintiff in support of its argument is inapposite to the situation at hand. As was correctly observed by this Court in Chiasson v. Law Firm of Dragon & Kellner, 335 So.2d 87 (La.App. 3rd Cir.1976), the client in Doucet authorized his attorney to settle the case for him, but later changed his mind. Conversely, in the situation at hand, the record does not indicate that any settlement offer was ever approved by the defendant. Therefore, we can only conclude that the plaintiff is not entitled to receive the contingency fee for whatever services it rendered to the defendant.

It should be noted that our holding herein is limited to the issue of the plaintiff’s entitlement to receive a contingency fee for its services. We express no opinion on any other remedies which may or may not be available to the plaintiff.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs on appeal are assessed against Fredric Hayes, Inc.

AFFIRMED.

      . La.R.S. 37:218 provides:
      “By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution or defense of which he is employed, whether the claim or suit be for money or for property. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client’s domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition had been made.”


author: CUTRER, Judge.

text:
    David LEGE, Plaintiff-Appellant, v. Lloyd ROMERO, et al., Defendants-Appellees.
    No. 83-116.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1983.

      Michael L. Schilling, Jr., Abbeville, for plaintiff-appellant.
    John E. Ortego, Abbeville, Robert C. Dunn, Corsicana, Tex., J. Nolan Sandoz, Abbeville, Stacey Moak, Baton Rouge, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This is an appeal from the granting of a motion for summary judgment. David Lege, plaintiff, sued Lloyd Romero, the Travelers Insurance Company (Travelers) and others for damages sustained when Lege’s truck struck a horse which had escaped from Romero’s farm. Travelers, Lege’s insurer, denied coverage and moved for summary judgment; the motion was granted. Lege appealed and we affirm.

On March 29, 1981, Lege was driving his 1975 Chevrolet pickup truck, insured by Travelers, along Louisiana State Highway 331. Suddenly and without warning three horses darted across the road in front of Lege. Lege was able to avoid two of the horses but struck the third, damaging his truck and incurring personal injuries.

Lege sued Romero, the owner of the farm from which the horses escaped, the owner of the horse he struck and Travelers, his own insurer. Lege sought to collect from Travelers under the uninsured motorist provision of his policy with Travelers. Travelers denied that the uninsured motorist portion of its policy provided protection against collisions with animals and moved for a summary judgment. After a hearing, the trial judge granted Travelers’ motion. Lege appealed.

We note that there is no material question of fact and that the use of a summary judgment was procedurally proper in this case. The only issue before this court is whether the trial court made an appropriate conclusion of law under the facts of this case.

Travelers contends that its policy provisions regarding Lege’s coverage for accidents involving uninsured motorists extends only to accidents involving “motor vehicles;” thus, since Lege struck a horse, there is no coverage under the policy. Lege, on the other hand, puts forth an argument which, in essence, urges that a riderless, escaped horse is a “motor vehicle” under Louisiana law. We do not agree with Mr. Lege.

This same point was raised and disposed of in the case of McDaniel v. Moore, 351 So.2d 855 (La.App. 2nd Cir.1977). In McDaniel a husband and wife, while riding an insured motorcycle, struck a horse. They sought to collect from their insurer under their policy’s uninsured motorist provision and their insurer moved for a summary judgment. The summary judgment was granted and affirmed. Simply stated the Second Circuit found that the definition of an “uninsured automobile” did not include animals.

The Travelers policy in this case defines an “uninsured motor vehicle” as a “highway vehicle or trailer of any type” which is not insured. A “highway vehicle” is further defined in the policy as a “land motor vehicle designed to be used mainly on public roads, or a trailer.” Even giving the language of Travelers’ policy a broad reading, a common sense interpretation of “motor vehicle” cannot be stretched to include a horse roaming at large. We hold that horses are not included in these definitions. The trial court shall be affirmed.

For the foregoing reasons we affirm the judgment of the trial court. All costs of this appeal are to be paid by plaintiff-appellant, David Lege.

AFFIRMED.

      . Plaintiff points out that, for the purposes of the Louisiana DWI statute, a person riding a horse is considered to be occupying a motor vehicle. The horse struck by Lege was riderless, thus we express no opinion in this regard.

      . The only other case we have been able to find Involving a claim under a UM provision for an accident involving an insured vehicle and an animal is Duvigneaud v. Government Employees Insurance Co., 363 So.2d 1292 (La.App. 4th Cir.1978), writ ref'd, 366 So.2d 560 (La.1979). This case, along with McDaniel, was commented upon by Prof. McKenzie in his recent law review article, Louisiana Uninsured Motorist Coverage-After Twenty Years, 43 La.L.R. 691, 712 (1983):
      “Obviously, there must be an uninsured or underinsured motor vehicle involved in the accident. Thus, in McDaniel v. Moore, ... there was no coverage for the insureds’ collision with a horse based upon the fault of those who permitted its escape. On the other hand, as illustrated by Duvigneaud v. Government Employees Insurance Co., ... the motor vehicle need not necessarily be the direct cause of the accident. While riding his motorcycle, the insured was overtaken and overturned by a large dog. In making claim under his UM coverage, the insured was able to trace the dog to the owner of an uninsured vehicle. The owner had negligently permitted the dog to escape from this vehicle. The court affirmed the jury finding that the accident arose out of ‘use’ of the vehicle from which the dog escaped. Arguably, the Duvigneaud case is beyond a ‘common sense’ relationship between the accident and the uninsured vehicle.” (Citation footnotes omitted.)
      Without commenting on Duvigneaud we note that McDaniel and the instant case are very similar factually and both are distinguishable from Duvigneaud.


text:
    Errol EBEY, Plaintiff-Appellee, v. DOLPHIN CONSTRUCTION COMPANY and the Travelers Insurance Company, Defendants-Appellants.
    No. 83-145.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1983.

      Gold, Little, Simon, Weems & Bruser, Edward E. Rundell, Alexandria, for defendants-appellants.
    John Bennett, Marksville, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and STOKER, JJ.
   DOMENGEAUX, Judge.

This suit to recover workers’ compensation benefits was filed by Errol Ebey against his former employer, Dolphin Construction Company, and its workers’ compensation carrier, Travelers Insurance Company, for injuries he allegedly sustained in a work-related accident on July 11, 1982. Following trial on the merits, the district court rendered judgment in favor of Errol Ebey and against Dolphin Construction Company and Travelers Insurance Company, in solido, for weekly compensation benefits of $164.00 per week for total and permanent disability from July 11, 1982, plus medical, incidental, and travel expenses. In addition, the plaintiff was awarded a 12 percent penalty on all past due benefits and was granted attorney’s fees in the amount of $3,000.00, both to be paid solely by Travelers Insurance Company. All costs were assessed against the defendants.

Subsequent to this adverse judgment, the defendants suspensively appealed. Plaintiff answered the appeal, seeking an increase in the award of attorney’s fees.

The facts of this dispute are as follows: The plaintiff was working as a laborer on a Dolphin Construction Company road crew which was engaged in resurfacing a highway near Bastrop, Louisiana, on July 11, 1982. At the end of that day, the plaintiff and a co-worker were allegedly endeavoring to load several road signs into the back of a truck. According to the plaintiff, while he was in the process of throwing one of these signs in the truck, he twisted and heard a “pop” in his back. The plaintiff testified at trial that his back began to hurt almost immediately; however, he did not mention the accident or injury to anyone else at that time.

After finishing work that day, the plaintiff and two of his co-workers returned to a motel in Monroe in which they had been residing. Both co-workers testified that during the ride back, the plaintiff never mentioned the accident and did not appear to be in pain.

There is some discrepancy in the record concerning the events that transpired thereafter. According to the plaintiff’s testimony at trial, he and his two co-workers got cleaned up when they arrived at the motel, went to McDonald’s to get something to eat, came back to their room and talked for a few minutes, and then went to bed. But according to the other two men who were staying with the plaintiff, all three of them went to a bar after getting cleaned up. They later returned to the motel with two girls, but the plaintiff then left the group and went back to the bar. The two coworkers each testified that when the plaintiff returned later, he appeared quite upset and agitated, had blood around his nose and mouth, and said that he had been in a fight. According to them, he then proceeded into the bathroom where he put his fist through a wall. The men also testified that plaintiff had thrown a chained bicycle over a rail at the motel on his way back to the room.

At trial, defense counsel sought to impeach the plaintiff’s testimony by introducing statements made by the plaintiff in his deposition which indicated that he and his companions had indeed gone to a bar and met some girls that night after work, rather than having simply gone to McDonald’s. However, in both his deposition and his testimony at trial, the plaintiff denied that he had been involved in a fight, that he had thrown a bicycle over the rail, and that he had put his fist through a bathroom wall on that particular evening. Rather, the plaintiff maintained that those events had occurred some ten days to two weeks previously.

In any event, when the plaintiff’s companions attempted to arouse him for work the following morning, he advised them that his stomach was hurting and that he wasn’t going to work. One of the two co-workers testified that the plaintiff mentioned at this point for the first time that his back was hurting.

Later that morning, the plaintiff telephoned his supervisor to advise him that he would not be coming to work that day. According to the plaintiff, he told the supervisor at that time that the reason he wasn’t coming to work was that his stomach and his back were hurting. However, according to the testimony of the supervisor, the plaintiff mentioned nothing to him about a back injury. ' This appears to be supported by the fact that nothing was mentioned in the supervisor’s daily log about the plaintiff’s back injury on that date. After concluding that the plaintiff’s excessive tardiness and absenteeism could no longer be tolerated, the supervisor immediately terminated the plaintiff from his job.

The plaintiff was subsequently examined by two doctors, Dr. P.M. Davis and Dr. Brian C. McCann. Doctor McCann testified at trial that he didn’t feel that the plaintiff should return to work as a laborer due to his injury, and that his problems were attributable to the incident in question. However, Doctor McCann further testified that his conclusions were based strictly on the plaintiff’s subjective complaints and that he could find nothing physically or objectively wrong with the plaintiff.

Doctor Davis concluded in his report that the plaintiff had suffered a sprain of the lumbosacral spine. Apparently, he too could find very little physical manifestation of the plaintiff’s injury. While he did indicate in the report that the plaintiff seemed to have some numbness in his back, he found no evidence that the numbness followed any nerve root pattern. He also ran a “straight leg raising test” on the plaintiff, but obtained results which according to Doctor McCann’s testimony at trial were “inconsistent”. Doctor Davis concluded that it could be a month to six weeks before the plaintiff could return to full-time hard manual labor.

On appeal, the defendants make four specifications of error, to-wit:

(1) The trial court erred in finding that the plaintiff was injured as a result of an accident which occurred in the course and scope of his employment;
(2) The trial court erred in finding that the plaintiff’s alleged disability was caused by a work-related accident;
(3) The trial court erred in finding that the defendants arbitrarily and capriciously failed to make workers’ compensation and medical benefits payments to the plaintiff; and
(4) The trial court erred in awarding plaintiff statutory penalties and attorney’s fees.

We will treat the first two assignments of error together, and do likewise with the last two assignments of error.

ERRORS NO. 1 AND 2

The defendants argue that the plaintiff failed to meet his burden of proving by a preponderance of the evidence that he suffered a disability caused by a work-related accident, citing as authority West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979), and Vallot v. Andrus Homes, Inc., 425 So.2d 804 (La.App. 3rd Cir.1982). Specifically, they maintain that the uncontra-dicted testimony of a workers’ compensation claimant as to the occurrence of an accident can be accepted as true only if there is nothing in the record casting suspicion on the reliability of this testimony. West and Vallot, supra. In this connection, the credibility of the plaintiff plays a crucial role in the decision making process. The trial judge is in the best position to make such a decision rather than an appellate court from a hard cold record. Here we must conclude that the trial judge believed the plaintiffs testimony that the accident occurred as the plaintiff testified and that the alleged fracas which plaintiff was involved in occurred prior to the date of the accident involved in this case. See Breaux v. The Great Atlantic & Pacific Tea Company, Inc., 302 So.2d 672 (La.App. 3rd Cir. 1974), writ denied 305 So.2d 540 (La.1975).

Such being the case, we feel constrained to follow the jurisprudential rule which requires that we give great weight to the factual conclusions of the trial judge, and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed by us even though we in this case may feel that our own evaluations and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). It is the task of the trial judge to determine the credibility of the witnesses and this determination will not be disturbed absent manifest error. Boustany v. Fluid Dynamics, Inc., 392 So.2d 750 (La. App. 3rd Cir.1980); Arceneaux, supra.

We have carefully reviewed the record in this case, paying close attention to the discrepancies in the plaintiffs testimony and the conflicting accounts of the circumstances surrounding the plaintiffs alleged accident. While we may very well have decided this case differently, we are unable to conclude that the district judge’s findings of fact and evaluations of credibility of the witnesses were manifestly erroneous. Therefore we will not disturb his findings on appeal. Hooper v. Wilkinson, 252 So.2d 137 (La.App. 3rd Cir.1971).

It should be noted that the defendants may in time seek a review of the district court’s judgment of compensation by applying for a modification thereof pursuant to the provisions of La.R.S. 23:1331. As noted in that statute, the provisions of La.R.S. 23:1121 through 23:1124 shall apply to such a review with reference to future medical examinations of the plaintiff in order that it may be determined whether or not his incapacity has increased or diminished.

ERRORS NO. 3 AND 4

Travelers Insurance Company challenges herein the finding of the trial court that it acted arbitrarily and capriciously in failing to make workers’ compensation and medical benefits payments to the plaintiff, thus subjecting it to a 12 percent statutory penalty on past due sums, plus a $3,000.00 attorney’s fee, pursuant to La.R.S. 23:1201.2. It maintains that due to the serious factual dispute over whether or not a compensable accident occurred that the court’s assessment of statutory penalties and attorney’s fees was inappropriate, and should thereby be reversed.

We cannot agree with the insurance company’s argument. The medical reports of both Doctor Davis and Doctor McCann indicate that the plaintiff suffered a debilitating injury to his back. Furthermore, the record clearly shows that Travelers refused to pay any compensation benefits to the plaintiff, despite repeated requests on the part of plaintiff’s counsel following the accident. Thus, we may not disagree with the district judge’s conclusion that Travelers Insurance Company was arbitrary and capricious in failing to honor the plaintiff’s claim, and that the plaintiff was entitled to receive an additional award of penalties and attorney’s fees.

However, with regard to the plaintiff’s request for additional attorney’s fees for the handling of his claim at trial and on appeal, we find this court’s decision in Con-lay v. Houston General Insurance Company, 370 So.2d 196 (La.App. 3rd Cir.1979) controlling. In that case, we stated:

“Plaintiff also requests additional attorney’s fees for the legal services required on appeal. An increase in attorney’s fees for services on appeal is usually awarded when the defendant appeals and obtains no relief on appeal, and the plaintiff requests it in accordance with proper appellate procedure. The basis for awarding additional attorney’s fees is that the litigant successful at the trial level must incur additional expenses, which otherwise would not have been incurred, in order to protect his rights on appeal.”

Since in the case at hand, the plaintiff is not only protecting his own rights because of the defendant’s appeal, but is also seeking additional relief which was not granted by the trial court, viz, an increase in the award of attorney’s fees granted for the trial of the claim in that court, we feel that an award of additional attorney’s fees is inappropriate.

For the above and foregoing reasons, the judgment of the trial court is affirmed at the defendants’ costs.

AFFIRMED.


text:
    WEEDEN ENGINEERING CORPORATION and Frank G. Weeden, Plaintiffs-Appellees, v. Anthony HALE, et al., Defendants-Appellants.
    No. 83-161.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1983.
    Rehearings Denied Aug. 31, 1983.

      Gregory K. Klein and J. Minos Simon, Lafayette, for defendants-appellants.
    Privat & Regan, Kenneth Privat, Crowley, for plaintiffs-appellees.
    Before DOMENGEAUX, CUTRER and STOKER, JJ.
   DOMENGEAUX, Judge.

This is an appeal by defendants Louis M. Corne with the law partnership of Simon, Corne, and Block, from a judgment rendered in favor of the plaintiffs, Weeden Engineering Corporation and Frank G. Weeden, in the sum of $4,000.00, plus interest and costs, pursuant ,to a suit to recover for services rendered by the plaintiffs on behalf of Mr. Corne and his client, Anthony Hale. The plaintiffs’ answered the defendants’ appeal, seeking an increase in the award granted by the district court from $4,000.00 to $5,368.40. Additionally, the plaintiffs seek an award of $2,000.00 in attorney’s fees, pursuant to the provisions of La.R.S. 9:2781.

The record establishes the following facts: In June of 1980, Louis M. Corne, a partner in the law firm of Simon, Corne, and Block, was representing Anthony Hale in connection with Mr. Hale’s claim for damages as a result of personal injuries he sustained in a work-related accident when an allegedly defective chain-hoist broke under strain and injured him. In the course of preparing for trial, Mr. Corne determined that it would be necessary to procure expert testimony with regard to the reason for the failure of the chain-hoist.

Thus, on June 26, 1980, Mr. Corne wrote to Mr. Frank Weeden of Weeden Engineering Corporation of Houston, Texas, informing Mr. Weeden that he represented Mr. Hale and was inquiring about the possibility of securing his services as an expert witness. Later, on July 25, 1980, Mr. Corne forwarded a check payable out of the Simon, Corne, and Block firm account in the amount of $1,000.00 to the plaintiffs, informing the company by letter that “I wish to employ your company to suggest tests that will be beneficial to prove the defective nature of the chain.” (Emphasis added).

Following a number of correspondences between Mr. Corne and Mr. Weeden concerning the tests that were being conducted, the Weeden Engineering Corporation sent an invoice to the defendants on September 10, 1980, in the amount of $4,217.84 and requested payment. Thereafter, Mr. Weeden attended the trial of Anthony Hale in Lafayette, Louisiana, wherein the suit was settled. Following the trial, on September 17, 1980, the corporation once again forwarded an invoice to Mr. Corne requesting payment now in the amount of $5,368.40. On October 21, 1980, the corporation sent an itemized statement of the charges included in the two previous invoices to Mr. Corne. Once again, on December 26, 1980, Mr. Weeden wrote Mr. Corne requesting payment.

Finally, on January 8, 1981, Mr. Corne wrote a letter to the plaintiffs, advising them that since he had acted at all times as a disclosed agent on behalf of his client, Mr. Hale, that he was not liable for payment of the plaintiffs’ fee. Thereafter, the plaintiffs filed suit against Mr. Corne, the law firm of Simon, Corne, and Block, and Mr. Hale.

It should be noted that at Anthony Hale’s trial, Mr. Weeden was not allowed to testify as to the tests he had conducted. The court had previously disallowed any destructive testing to be conducted on the actual chain that had broken and caused Mr. Hale’s injuries. Thus, Mr. Weeden was forced to conduct tests on another chain which ultimately turned out to be a different type of chain from that involved in the accident. Once it was proven at trial that the chain upon which all the tests were run was the wrong chain and had characteristics which were completely different from the original chain, Mr. Weeden’s testimony was disallowed by the trial court.

The district judge determined in this case that Mr. Corne failed to meet his burden of proving that he had disclosed his status as an agent and had identified his principal. Thus, he held that the defendants could not avoid personal liability for the debt owed to the plaintiffs. The defendants challenged this holding on appeal, maintaining that at all times, the plaintiffs were aware that they had been employed by Mr. Corne as a disclosed agent of Anthony Hale.

Since both the plaintiffs and the defendants have lodged claims in this appeal, we will treat both sets of claims separately.

DEFENDANTS’ CLAIM

The defendants maintain on appeal that the trial court erred in finding that Louis Corne did not disclose to Frank Weeden that he was acting as an agent of Anthony Hale at the time that he employed the plaintiffs. The defendants specifically cite the language used by Mr. Corne in his letter to Frank Weeden dated June 26, 1980, in which the first sentence stated: “I represent Mr. Anthony Hale who is involved in a work-related accident wherein a chain-hoist broke under strain and injured him.” (Emphasis added). They maintain that this language is clearly indicative of a principal-agent relationship between Mr. Corne and his client, and that they cannot be held liable for the charges incurred, pursuant to the provisions of La.C.C. Arts. 3012 and 3013.

However, we do not feel that it is necessary for us to determine whether or not a principal-agent relationship existed here. While generally speaking, an agent is not responsible to third persons where his principal is disclosed, the agent may make himself personally liable if he expressly or impliedly pledges his own responsibility. Castille v. Folck, 338 So.2d 328 (La.App. 3rd Cir.1976). We are of the opinion that even if Mr. Corne was a disclosed agent of Anthony Hale, that his actions in procuring Frank Weeden as an expert witness constituted an implied pledging of his own personal responsibility for the debts incurred for the plaintiffs’ services.

Several factors lead us to this conclusion. In the first place, the record indicates that the $1,000.00 deposit forwarded to the plaintiffs by Mr. Corne was drawn out of the Simon, Corne, and Block firm account, rather than out of Anthony Hale’s own account. Secondly, the letter dated July 25, 1980, from Mr. Corne to Mr. Weeden specifically stated in the third paragraph that “I (Mr. Corne) wish to employ your company (Weeden Engineering Corporation) ...” (Parentheses added). There is absolutely no indication in this letter that the defendants did not intend to be personally liable for the fees and expenses of the plaintiffs. In fact, the defendants never expressed any intention at the time that the plaintiffs’ services were procured, that Anthony Hale should be held liable for the services rendered. There is no indication that Mr. Wee-den was ever even provided with any way of contacting Mr. Hale for payment, other than by proceeding through Mr. Corne.

Under these circumstances, it is our conclusion that the plaintiffs had a right to look to Louis Corne, as the attorney for Anthony Hale, and the law firm of Simon, Corne, and Block, for payment of the debt owed. Whether or not Mr. Corne and the law firm have a claim against Mr. Hale for these charges is an issue which is not before us.

PLAINTIFFS’ CLAIM

The plaintiffs seek an increase in the award of damages granted to them by the trial court from $4,000.00 to $5,368.40, representing the amount which was actually billed to the defendants for the plaintiffs’ services. In this regard, the district judge determined that while the tests conducted by the plaintiffs turned out to be inadmissible in Anthony Hale’s trial, that at least some of the work performed by them was in accordance with Mr. Corne’s request. He thereby reduced the amount of damages recoverable by the plaintiffs to $4,000.00.

We find no abuse of discretion in this award of damages by the trial judge. Thus, we will not disturb it on appeal. Reck v. Stevens, 373 So.2d 498 (La.1979).

However, the plaintiffs additionally seek an award of attorney’s fees pursuant to the provisions of La.R.S. 9:2781. That statute provides, in pertinent part:

“When any person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant.

Furthermore, pursuant to Act 463 of 1981, the statute was amended to include the following:

“For the purposes of this Section, an open account shall include debts incurred for professional services, including, but not limited to, legal and medical services, which are rendered on a continuing basis.”

The plaintiffs maintain that the trial court erred in refusing to grant them attorney’s fees, arguing that the services they rendered to the defendants constituted “professional services” within the context of La.R.S. 9:2781 as amended. Thus, they maintain that they are entitled to recover attorney’s fees in the sum of $2,000.00.

It is well-established in our jurisprudence that statutes are to be construed in such a manner as to effectuate their purpose. When a statute is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire statute is to be preferred over an interpretation that renders part of the statute ridiculous or nugatory. Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980). In such circumstances, our Courts will give that construction which best comports with the principles of reason, justice, and convenience, for it is to be presumed that the Legislature intended such exceptions to its language as would avoid its leading to absurd consequences. Freechou v. Thomas W. Hooley, Inc., 383 So.2d 337 (La.1980).

When examining the 1981 amendment to La.R.S. 9:2781, cited in pertinent part, supra, it is arguable that the provision may be subject to two different interpretations. The phrase “... which are rendered on a continuing basis ...” conceivably could refer to debts incurred for “professional services” in general, or might merely refer to debts incurred for “legal and medical services.” If the latter interpretation is given credence, then quite possibly debts incurred for professional services, perhaps including the type of services performed by the plaintiffs herein, could be construed to constitute debts on an open account, regardless of whether or not these services were “rendered on a continuing basis.”

However, we feel that such an interpretation of this amendment would lead to absurd consequences and would subvert the intent of the Legislature. This Act was designed in order to insure that debts incurred by persons rendering professional services, such as doctors and lawyers, could qualify as open accounts, entitling these persons to recover attorney’s fees for the prosecution of their claims. It would be incongruous to single out only persons providing legal and medical services and require them to provide services on a continuing basis before becoming eligible for attorney’s fees under the statute. Thus, we conclude that all persons providing professional services must be deemed to have rendered them on a continuing basis before such persons can become eligible to recover attorney’s fees under the purview of La. R.S. 9:2781.

Under this interpretation of the statute, we are unable to conclude that the plaintiffs are entitled to recover attorney’s fees. It is evident to us that Frank Weeden and Weeden Engineering Corporation were merely providing one service based on a single contract. There is no evidence whatsoever in the record indicating that the plaintiffs were rendering a continuous supply of services to the defendants. Therefore, the plaintiffs were properly denied attorney’s fees by the district judge.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

Costs on appeal are assessed fifty percent (50%) against Louis Corne and the law firm of Simon, Corne, and Block, and fifty percent (50%) against Frank Weeden and Wee-den Engineering Corporation.

AFFIRMED.

      . La.C.C. Art. 3012 provides:
      “The mandatory, who has communicated his authority to a person with whom he contracts in that capacity, is not answerable to the latter for anything done beyond it, unless he has entered into a personal guarantee.”
      Additionally, La.C.C. Art. 3013 states:
      “The mandatory is responsible to those with whom he contracts, only when he has bound himself personally, or when he has exceeded his authority without having exhibited his powers.”


author: STOKER, Judge.

text:
    Stephen J. LEMELLE, Plaintiff-Appellant, v. STATE of Louisiana, Through the BOARD OF SECONDARY & ELEMENTARY EDUCATION, et al., Defendants-Appellees.
    No. 83-168.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1983.

      Hornsby & Landry, Lucius A. Hornsby, Jr., Lafayette, for plaintiff-appellant.
    Roy A. Mongrue, Jr., Asst. Atty. Gen., Baton Rouge, N. Marcey Lyons, Crowley, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and STOKER, JJ.
   STOKER, Judge.

Plaintiff, Stephen Lemelle, appeals from the trial court’s dismissal of his suit for damages against the State of Louisiana, through the Board of Secondary & Elementary Education; the Southwest Louisiana Vocational-Technical School (Vo-Tech); two of its instructors, Darrel Boullion and Haywood Hollier; and one of its students, Ronald Sarver.

Lemelle, a former student at Vo-Tech, severely injured his left knee when a sheet of steel he and Sarver were moving fell on him. The issues on appeal are whether the trial.court erred in finding all defendants free from negligence and in finding that Lemelle’s negligence was the sole proximate cause of his injury. The trial judge gave judgment in favor of all defendants at plaintiff’s cost. We affirm.

FACTS

On Monday, January 24, 1978, Lemelle and Sarver were students at Vo-Tech studying welding. An accident occurred as they attempted to carry a sheet of steel from one point in the welding shop to another. The steel was 2' X 8' X ⅜" and weighed 200 to 250 pounds. It had been received at the shop the previous Friday and was placed on blocks near a door. Lemelle was walking backwards carrying one end of the steel and tripped. He fell and the steel fell on his knee. These basic facts concerning the accident are undisputed. The circumstances leading up to and surrounding the accident are the basis of this dispute.

Lemelle claims that on the morning of the accident Sarver approached him and informed him that Hollier wanted the steel to be moved. Lemelle says that he assisted Sarver in moving several sheets of steel and on the fourth or fifth one he tripped over a piece of iron on the floor causing his injury.

Sarver testified that Lemelle approached him that morning and asked for assistance in moving the steel to the burning table or sawhorses to be cut. Sarver did not see what caused Lemelle to trip and testified further that he had no knowledge of why Lemelle tripped. Sarver stated that they only moved the one piece of steel.

Hollier testified that just after the 8:30 a.m. roll call that day, he asked Lemelle to cut the steel in three pieces so that it could be picked up and stacked with other pieces of steel in the shop. He claims to have seen nothing of the moving activity until he was told that there had been an accident. Upon approaching Lemelle who was sitting on the ground after falling, Hollier claims that Lemelle expressed remorse at not having followed his instructions.

NEGLIGENCE

The trial judge found that Lemelle had been requested by Hollier to cut the steel, but for reasons of his own decided instead to move it with the assistance of Sarver. Lemelle’s actions in walking backwards carrying the heavy steel in a shop where he knew there was often scrap metal on the floor were found by the trial judge to constitute gross negligence which was the sole proximate cause of the accident.

The primary basis of Lemelle’s claim on appeal is that his activities were not properly supervised. He cites as authority Green v. Orleans Parish School Board, 365 So.2d 834 (La.App. 4th Cir.1978), writ denied 367 So.2d 393 (La.1979), in which the court held: “A teacher has the duty to conduct his classes so as not to expose his students to an unreasonable risk of injury.”

There is no dispute in this case that the moving of a sheet of steel the size of the one involved is a dangerous activity. Le-melle argues that even if Hollier intended that the steel be cut before it was moved, the activity was sufficiently dangerous to require supervision. Had this supervision been provided, the moving activity would have been observed and prevented. We disagree.

Lemelle had been a student at Vo-Tech for more than six months at the time of the accident. He had been given instructions regarding the use of the acetylene torch as one of his first activities at the school. As a twenty-nine-year-old mature adult, he should have been able to carry out Hollier’s instructions to cut the metal without the need of supervision.

We do not reach the question of whether supervision would have been required if Lemelle had been instructed to move the steel. The trial judge accepted Hollier’s version of the events leading up to the accident and this determination is not clearly wrong. Hollier’s version was corroborated by the other instructor in the school and a student. Other students who testified made it clear that the normal procedure would have been to cut the steel and then move it. It is also clear from the evidence that the steel could have been cut on the blocks where it sat before Lemelle attempted to move it.

The trial judge correctly concluded that Lemelle’s negligence was the sole cause of his accident.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


text:
    TOLMAK, INC., Plaintiff-Appellant, v. SERVITRON, INC., et al., Defendants-Appellant.
    No. 83-174.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1983.

      Raggio, Cappel, Chozen & Berniard, Richard E. Chozen, Lake Charles, for plaintiff-appellant.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, Scofield, Bertstedt, Gerard, Mount & Vernon, Richard E. Gerard, Jr., Lake Charles, for defendants-ap-pellees.
    Before DOMENGEAUX, CUTRER and STOKER, JJ.
   STOKER, Judge.

In this appeal we are concerned with two consolidated eases which involve claims arising out of an accident which occurred at a railroad construction site. Pretrial motions in these cases have been, previously considered by this Court in Home Indemnity Company v. Central Louisiana Electric Company, 384 So.2d 455 (La.App. 3rd Cir. 1980), writ denied 392 So.2d 664 (La.1980).

The claims flow from tort recovery by Clarence Pullard against Tolmak, Inc. (Tol-mak). Pullard sustained electrical shock and burns when a hydraulic crane operated by an employee of Servitron, Inc. (Servi-tron) struck an electrical line belonging to Central Louisiana Electric Company (CLE-CO). Pullard is not a party to these suits. The claims which we are called upon to consider are the adjustment of the ultimate impact of the claims among allegedly responsible parties. Pullard recovered tort damages from Tolmak in a separate suit in federal court which it seeks to shift by indemnity or contribution to CLECO and Servitron.

The trial court found in favor of CLECO and exonerated it of any responsibility, and Tolmak complains in this appeal of that ruling. The trial judge found in favor of Tolmak in its claim against Servitron, and Servitron also appeals. Although CLECO was completely exonerated by the trial court, it has answered the appeal along with its insurer, Continental Casualty Company (Continental), complaining that the trial court did not dispose of the matter on grounds not involving the merits of the case. The trial court judgment dismissing the claim of Home Indemnity Company for reimbursement of worker’s compensation benefits has not been appealed.

We affirm the trial court on its ruling with reference to the merits of the case. Although the other matters of which CLE-CO and Continental complained may have merit, we do not consider them in view of the fact that the case has gone to trial and the merits disclose no liability on the part of CLECO or Continental.

FACTS

Clarence Pullard was injured on August 26, 1969, while working in Beauregard Parish as an employee of Servitron. Servitron was constructing a railroad line pursuant to a contract with Tolmak. Pullard brought a tort suit in the United States District Court in Texas against numerous parties. Judgment was rendered in that Texas federal suit against Tolmak in the amount of $144,-955.70. Tolmak satisfied the judgment by paying Pullard $156,655.41. CLECO was not a party to the federal suit in Texas.

On August 21,1970, the Home Indemnity Company filed suit No. 14,396 (Appeal 83-173) in Beauregard Parish against CLECO, Continental and others to recover worker’s compensation which Home had paid to Pul-lard on behalf of Servitron. Tolmak intervened in this suit on April 2, 1975 against CLECO, Servitron and Home as Servitron’s liability insurer, seeking indemnity or contribution for the sum paid to Pullard in satisfaction of the tort judgment granted by the federal court. On that same date, Tolmak also filed suit No. 17,049 in Beauregard Parish seeking the same relief as it sought in the intervention but solely against Servitron and Home. This is appeal No. 83-174.

The cases were consolidated and ultimately tried resulting in judgment as set out above. Although Servitron is an appellant in this matter, it makes no argument on the issue of its own liability. Servitron asserts only the following in its brief:

“Servitron’s obligation to indemnify Tol-mak, Inc. for the moneys paid to Clarence Pullard as a result of the judgment rendered in Federal District Court in Texas, rises and falls with Tolmak’s right to indemnity from Central Louisiana Electric Company. Therefore, Servitron, Inc., for purposes of this appeal, adopts and joins with Tolmak in its appellant brief filed in support of its appeal from the judgment rendered in Consolidated Appeal No. 83-173, ‘The Home Indemnity Company v. Cleco, et al,’ on appeal from the 36th Judicial District Court, Parish of Beauregard.”

Because we find that Tolmak is not entitled to indemnity from CLECO, we affirm the judgment in favor of Tolmak and against Servitron which was based on an explicit indemnity clause in the contract between Tolmak and Servitron. The validity of this judgment is not argued by Servi-tron except to the extent that it joins with Tolmak in arguing that CLECO was responsible for the accident.

LIABILITY OF CLECO

As to CLECO, the trial court held: “Under the circumstances of this case I fail to see how anything that Cleco did, or omitted to do, amounted to negligence which was a proximate cause of the accident.”

We do not find this holding to be clearly wrong.

The electrical line involved in the accident was constructed by CLECO in accordance with a request by the Boise Cascade Corporation, owner of a paper mill under construction close by. The line was installed to service a guard shack. At the time the line was erected, the evidence indicates that the area was wood and pasture land. Construction of the railroad had not yet begun. According to the National Electrical Safety Code, clearance for the 19,200 volt line involved here would be seventeen feet prescribed for wood and pasture land. Just after the accident, the line was measured by Servitron employees to be nineteen feet four inches from the ground and by a CLECO employee to be twenty feet four inches. An electrical engineer for CLECO testified that at the time of construction the line should have been approximately twenty-three and one-half feet from the ground. Testimony that the ground level had been raised about two feet during construction of the railroad accounts for some of the difference between the constructed height of the line and its height at the time of the accident.

Correspondence between CLECO and Servitron prior to the beginning of construction of the railroad dealt with the necessity of raising three particular lines owned by CLECO. These lines did not include the one involved in this accident, nor was it included in the surveys of the construction area admitted into evidence at trial.

There is no recommended height in the ■ National Electrical Safety Code for lines in construction areas. The recommendation for operating railroads is twenty-two feet if no persons are expected to ride on top of the railroad cars and thirty feet if they are expected to ride on top of the cars. At the time of the accident, the crane which came into contact with the line was being used by Servitron to lay the rails. The railroad was not yet in operation.

Tolmak argues that CLECO had notice of construction in the area and had a plat showing the route of the track under construction. Tolmak also urges that CLECO should have known that boom trucks such as the one involved in the accident would be used in the construction and should have taken steps to warn the workers, de-ener-gize the line, or raise it beyond the reach of construction equipment.

Apparently CLECO did have a plat prepared by Servitron showing the proposed route of the railroad. However, that plat specifically indicated the electrical lines which Servitron wanted raised. Tolmak’s argument appears to be based on the position that CLECO had a duty to go out and inspect the construction site to be sure that all lines in the area were either made safe or brought to Servitron’s attention. We do not agree. Nor do we find that CLECO was in a position to know the type of equipment used for constructing railroads.

Tolmak also argues that CLECO had notice of the type of construction being conducted under the line because its employee, Reevel Veillon, had frequently traveled along the road next to the construction site and had observed the construction in progress under the line. Mr. Veillon testified that there was a lot of construction going on in that area and his statements do not show that he particularly noticed the construction activity under the line involved here or the type of equipment being used in that particular spot. His presence around the construction area is not sufficient to put CLECO on notice of a dangerous situation.

CONCLUSION

The trial judge was not clearly wrong in finding that CLECO was in no way responsible for this accident and that it was caused by the negligence of Servitron’s superintendent and foreman. Tolmak was properly awarded indemnity from Servitron based on the explicit indemnity clause in the contract between them.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed equally between appellants, Tolmak, Inc. and Servitron, Inc.

AFFIRMED.

      . The other case consolidated in this appeal is Home Indemnity Company v. Central Louisiana Eiectric Company, et ai., 435 So.2d 1168 (La. App. 3rd Cir.1983).


text:
    The HOME INDEMNITY COMPANY, Plaintiff-Appellee, v. CENTRAL LOUISIANA ELECTRIC COMPANY, et al., Defendants-Appellees-Appellants.
    No. 83-173.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1983.
    Raggio, Cappel, Chozen & Berniard, Richard E. Chozen, Lake Charles, for plaintiff-appellant.
    Stafford, Stewart & Potter, Grove Stafford, Jr., Alexandria, Scofield, Bertstedt, Gerard, Mount & Vernon, Richard E. Gerard, Jr., Lake Charles, for defendants-ap-pellees.
    Before DOMENGEAUX, CUTRER and STOKER, JJ.
   STOKER, Judge.

For the reasons contained in Tolmak, Inc. v. Servitron, Inc., et a1., 435 So.2d 1164 (La.App. 3rd Cir.1983), in which we render a separate opinion this date, the judgment of the trial court in this case is affirmed. Costs of this appeal are assessed equally between appellants, Tolmak, Inc. and Servitron, Inc.

AFFIRMED.


author: SUGG, Retired Justice,

text:
    Charles Edward RANSOM v. STATE of Mississippi.
    No. 54345.
    Supreme Court of Mississippi.
    Aug. 3, 1983.
    Sidney J. Martin, Greenville, for appellant.
    Bill Allain, Atty. Gen., by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., HAWKINS and DAN M. LEE, JJ., and SUGG, Retired Justice.
   SUGG, Retired Justice,

for the Court:

Appellant was convicted in the Circuit Court of Washington County on August 20, 1982, for possession of more than one ounce of marijuana with the intent to deliver. He was sentenced to serve a term of eight years in the custody of the State Department of Corrections.

The principal question in this case was whether the court erred in overruling appellant’s motion to dismiss with prejudice under our speedy trial statute, Section 99-17-1 Mississippi Code Annotated (1976 Supp.). In his motion appellant alleged he had been indicted on October 29, 1981, filed a motion for a speedy trial on November 13, 1981, arraigned on November 23, 1981, and tried on August 20, 1982. He claims no prejudice resulting from delaying his trial until August 20, but contends he was tried on the 271st day following his arraignment in violation of section 99-17-1.

Section 99-17-1 was enacted in 1976 and became effective July 1, 1976. It provides:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

The State argues that in computing the 270 days prescribed in section 99-17-1, the day of arraignment should be excluded. We agree because the statute provides that offenses must be tried not later than 270 days “after the accused has been arraigned.” This interpretation is consistent with Section 1-3-67 Mississippi Code Annotated (1972) which states the rule for computation of time when a number of days is prescribed. Section 1-3-67 reads as follows:

When process shall be required to be served or notice given any number of days, the day of serving the process or of giving the notice shall be excluded and the day of appearance included; and in all other cases when any number of days shall be prescribed, one day shall be excluded and the other included. When the last day falls on Sunday, it shall be ex-eluded; but in other cases Sunday shall be reckoned in the computation of time.

Applying the provisions of sections 1-3-67 and 99-17-1, we hold that the date of arraignment, November 23, 1981, should be excluded and the date of trial, August 20, 1982, should be included in determining whether appellant was tried more than 270 days after his arraignment. Based on our interpretation of the statute, the following table demonstrates that appellant was tried on the 270th day after his arraignment.

MONTH DAYS

November, 1981 7

December, 1981 31

January, 1982 31

February, 1982 28

March, 1982 31

April, 1982 30

May, 1982 31

June, 1982 30

July, 1982 . 31

August, 1982 _20

270

We hold that appellant was tried on the 270th day following his arraignment which is in accord with the provisions of section 99-17-1 and 1-3-67; therefore, the trial court properly overruled his motion to dismiss.

Appellant also assigns as error that he was entitled to a directed verdict and the verdict of the jury was contrary to the overwhelming weight of the evidence.

We have carefully considered the record and hold that the evidence offered on behalf of the State was sufficient to make a jury question and the verdict was not contrary to the overwhelming weight of the evidence.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

      . Sitting pursuant to Mississippi Code Annotated Section 9-3-6 (Supp.1982). The opinion is adopted as the opinion of the Court.

      . Seven days remained in November following the arraignment of appellant.

      . August 20 was the date of appellant’s trial.


author: ROBERTSON, Justice,

text:
    John McLAURIN, et al., Trustees of the Newton County Unit School District v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Terry W. McElhenney.
    No. 54244.
    Supreme Court of Mississippi.
    Aug. 3, 1983.

      Leon Mangum, Decatur, for appellants.
    Fred J. Lotterhos, Jackson, for appellees.
    Before PATTERSON, C.J., and ROY NOBLE LEE and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court.

I.

On September 17, 1979, Terry W. McEl-henney filed a claim for unemployment compensation benefits. At that time McEl-henney was working on a part-time basis as a school bus driver for the Newton County Unit School District (sometimes hereinafter “N.C.U.S.D.” or “the school district”). Despite this part-time work, the Mississippi Employment Security Commission’s Board of Review held that McElhenney was “unemployed” within the meaning of the Mississippi Employment Security Law. Miss. Code Ann. § 75-5-ll[0](l) (Supp.1982).

The primary question presented is whether the school district, as the part-time employer of McElhenney, is liable under the Act for pro rata reimbursement of the Mississippi Employment Security Trust Fund. The MESC Board of Review held that the school district was so liable. The Circuit Court of Newton County, Mississippi, upheld that determination. Having carefully reviewed the matter, we affirm.

II.

Our threshold inquiry is whether McEl-henney was “unemployed”. This question must be answered by reference to the definition of the term “unemployed” as found in the statute and not in the dictionary. Our legislature has provided that an individual shall be deemed “unemployed”

in any week during which he performs no services and with respect to which no wages are payable to him, or in any week of less than full-time work if the wages payable to him with respect to such week are less than his weekly benefit amount. Miss.Code Ann. § 71-5-ll(0)(l) (Supp. 1982) [Emphasis added].

The legislature has thus declared that individuals not wholly unemployed in fact may nevertheless be deemed “unemployed” as a matter of law. The Mississippi Employment Security Commission’s lawfully promulgated regulation is to like effect:

"... [A]n individual shall be deemed to be part-totally unemployed in any week of less than full-time work, if the wages payable to him with respect to such week are less than his weekly benefit amount....” MESC Reg. No. 102

At all times relevant hereto McElhenney was working for the Newton County Unit School District as a school bus driver. He worked for approximately one and a half hours each morning and a like time each afternoon. He was in fact employed.

Both the statute and regulation, however, make clear that amount of work activity is not determinative. What is determinative is whether McElhenney’s wages were less than his benefit amount. It is undisputed, as a matter of fact, that McEl-henney’s wages were $53.75 per week and his weekly benefit amount was $80.00. His weekly wages were thus less than his weekly benefit amount. As a matter of law McElhenney was unemployed.

Unemployment, in this context a function of law, does not arise from lack of work activity, from lack of engagement to work, or from a complete absence of wages, all of which are wholly matters of fact. The legislature has the power to designate by general definition those individuals eligible for benefits. It certainly has the power to provide that those individuals earning less than their weekly benefit amount shall be eligible for benefits without regard to the fact that they may be engaged in some part-time work activity. And, it certainly has the power, if it wishes to do so, to use the word “unemployed” and define that word in a way different from what may be in the dictionary or different from common or accepted usage among lay persons. These powers our legislature has exercised.

When the legal definition of “unemployed” as prescribed in Section 71-5-11(0)(1) is applied to the facts of this case, it becomes indisputable that Terry W. McElhenney was unemployed for purposes of determining his eligibility for benefits under the Mississippi Employment Security Law.

III.

During the “base period” McElhenney was employed and had earnings as follows:

BASE PERIOD QUARTER EMPLOYER CALENDAR YEAR QUARTER EARNINGS

1st Qtr. Kendrick Fence Co. 2nd Qtr. 1978 $2,080.00

2nd Qtr. Kendrick Fence Co. 3rd Qtr. 1978 2,080.00

3rd Qtr. N.C.U.S.D. 4th Qtr. 1978 440.00

4th Qtr. N.C.U.S.D. 1st Qtr. 1979 660,00

Total Earnings $5,260.00

McElhenney being unemployed within the meaning of the law and thus eligible for benefits under the law, the only question is how and by whom McElhenney’s benefits shall be financed. As before, the answer is purely a function of legislative directive. That directive may be found in Miss.Code Ann. § 71-5-357 (Supp.1982). See Mississippi Employment Security Commission v. City of Columbus Light & Water Department, et al., 424 So.2d 553, 557 (Miss.1982).

Here, during the base period, McElhen-ney was employed by two separate employers, one, Kendrick Fence Company, a contributing employer [see Section 71-5-351 (Supp.1982) ] and the second, Newton County Unit School District, a reimbursing employer [see Section 71-5-357 (Supp.1982)]. In this factual context, we find an express legislative directive making clear the reimbursement obligation of the school district in Section 71-5-357(c)(i) (Supp.1982). This section requires reimbursement payment to the trust fund in

“an amount which bears the same ratio to the total benefits paid to the individual as the total base period wages paid to the individual by such employer bear to the total base-period wages paid to the individual by all of his base-period employers”.

Under the facts of this case, the school district’s pro rata allocation is 20.91 percent, computed as follows:

AMOUNT EARNED EMPLOYER BY MCELHENNEY PERCENTAGE OF TOTAL BASE PERIOD EARNINGS ATTRIBUTIVE TO EACH EMPLOYER

Kenrick Fence Co. $4,160.00 79.09%

N.C.U.S.D. $1,100.00 _ _ 20.91%

This Court has recently recognized the view we take here in Mississippi Employment Security Commission v. City of Columbus Light & Water Department, et al., 424 So.2d 553 (Miss.1982). There the Court stated that the legislature of this state had enacted that, in such cases as this,

reimbursing employers shall pay to the commission their proportionate share of unemployment benefits based upon the length of time the unemployed worker had worked for the political subdivision in the base period. 424 So.2d at 557.

Then, to reinforce the point, the Court went on to read the legislative enactment to provide that:

To the extent the unemployment benefits are attributable to the worker’s period of employment with the political subdivision, the subdivision is obligated to reimburse the Commission a commensurate amount of the unemployment benefits paid. There is no exception to this requirement. 424 So.2d at 557. [Emphasis added].

The legislature has provided in terms controlling here that

[p]ayments due by employers who elect to reimburse the fund in lieu of contributions as provided in this subsection may not be noncharged under any condition. The reimbursement may be on a dollar for dollar basis. ($1.00 reimbursement for each dollar paid in benefits) in every case; ... Miss.Code Ann. § 71-5-357(b)(iv) (Supp.1982).

In the context of the facts of this case, the payments due by an employer such as N.C. U.S.D. are made payable and are computed under Section 71-5-357(c)(i) (Supp.1982).

When all is said and done, this case is quite simple. McElhenney is unemployed within the meaning of the law. He is eligible for benefits within the meaning of the law. Those benefits must be paid from the Mississippi Employment Security Trust Fund. That Fund is derived from monies exacted from employers, either as contributors or as reimbursers. It is within the police powers of this state to compel such contributions or reimbursements.

In cases such as this involving two or more employers, the legislature has provided a formula for allocation of the burden of funding the Trust. Miss.Code Ann. § 71-5-357(c)(i) (Supp.1982). That formula is by no means irrational nor unrelated to the legislative purpose to allocate fairly among employers the burden of funding the Trust. It is our duty to apply and enforce that formula as written. This we do by our decision here.

IV.

The school district has argued vigorously that it may not be held liable for reimbursement because McElhenney is still employed by it as a part-time school bus driver. It would be unfair and inequitable to require it to fund the trust, pro rata, when it has done nothing to contribute to McElhenney’s “unemployment”, or so the argument goes.

However meritorious or appealing the school district’s argument may be, it is one properly addressed to the legislature and not to this Court. This Court must faithfully interpret and enforce the Mississippi Employment Security Law as it has been written and consistent with the public policy and spirit expressly or impliedly under-girding it.

We have above described the law as it has been written. In answer to the school district’s argument, we emphasize here the legislative purpose “to provide through the accumulation of reserves for the payment of compensation to individuals with respect to their unemployment”. Miss.Code Ann. § 71-5-1 (1972). The legislature of this state has found that the public good and the general welfare require the establishment and maintenance of an Employment Security Trust Fund. Miss.Code Ann. § 71-5-451, et seq. (Supp.1982). The monies that go into that Trust Fund must come from some source. The legislature has provided for mandatory assessments against employers to fund the Trust stating:

The legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this state require the enactment of this measure, under the policy powers of the state, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own. Miss.Code Ann. § 71-5-3 (1972).

Employers are thus required to fund the Trust. Miss.Code Ann. §§ 71-5-351, et seq. (Supp.1982). The school district complains that it should not be required to make reimbursement unless it is at fault in causing the employee’s unemployment. The argument misses the point. In the overwhelming majority of cases, unemployment compensation benefits are paid in a context where no one is at fault, not employer nor employee. If there be a culprit, it may be the economic conditions which produce no-fault unemployment. In this context and without in any way attempting to impose fault or cast blame toward employers, the legislature has provided a trust fund out of which to pay unemployment compensation claims. Miss.Code § 71-5-451 (Supp.1982).

If the school district’s position were accepted, and if the principle implicit therein were widely utilized, the integrity of the Trust Fund would be in danger. For. claims would be allowed against the Fund for amounts earned during the base period, which amounts would not be contributed or reimbursed by any employer. Absent an express provision to such effect, we will not imply any intention of the legislature to allow claims where no employer is contributing to the Trust Fund or reimbursing it.

Here the school district is required to reimburse the Trust Fund, not because the school district was at fault in contributing to McElhenney’s “unemployment”. It is required to make reimbursement because it was McElhenney’s employer during a part of the base period, and because the Legislature of the State of Mississippi, in the exercise of its police powers and its considered judgment based upon its perception of the public good and the welfare of the citizens of this state, has required that it make such reimbursement.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, HAWKINS and PRATHER, JJ., concur.

BOWLING and DAN M. LEE, JJ., not participating.

      . The term “weekly benefit amount” is also defined by statute. Miss.Code Ann. § 71-5-503 (Supp. 1982). Without dispute McElhen-ney’s weekly benefit amount, computed according to the formula in Section 71-5-503, is $80.00.

      . See footnote 1, supra.

      . The term “employment” is used and defined in a similarly arbitrary but nevertheless wholly lawful manner. For example, a person engaged in agricultural labor no doubt thinks of himself as employed. His working relationship with his employer no doubt falls within the dictionary definition of the term “employment”. Still for purposes of the Mississippi Employment Security Law, his labor may not be deemed “employment”. Miss.Code Ann. § 71-5-ll(I)(15).

      .“Base period” means the first four of the last five completed calendar quarters immediately preceding the first day of an individual’s benefit year. Miss.Code Ann. § 71 — 5—11[A] (Supp. 1982). For a helpful explanation of the base period concept and its function in the determination of benefits eligibility, see the chart attached as an appendix to this Court’s decision in Mississippi Employment Security Commission v. City of Columbus Light & Water Dept., et al., 424 So.2d 553, 558 (Miss.1982).

      . We note that many employers are required by law to make periodic contributions to the Mississippi Employment Security Trust Fund. Miss.Code Ann. §§ 71-5-351, et seq. (Supp. 1982). In a sense, these employers fund the trust in advance of claims made against it. Political subdivisions, such as the school district here, are provided the option of being “reimbursing employers” rather than “contributing employers”. Miss.Code Ann. § 71-5-357(b) (Supp.1982). Reimbursing employers replenish the trust after claims have been made and paid. The Newton County Unit School District has elected to be a reimbursing employer.

      . These general statements of purpose and policy were a part of the law as originally enacted in 1936. Miss.Laws, 1936, ch. 176, § 2. At that time the Trust Fund was funded exclusively through “contributions”. The “reimbursement” method óf funding the Trust was not made a part of the law until January 1, 1972. Miss.Laws 1971, ch. 519, §§ 16, 19 and, political subdivisions, such as the school district here, were afforded the reimbursement option by amendment to the act in 1977. Miss.Laws 1977, ch. 497, § 4. See Mississippi Employment Security Commission v. City of Columbus

        Light & Water Department, et al., supra, 424 So.2d at 554, 555.


text:
    Gary Dale LIGHTSEY v. STATE of Mississippi.
    No. 54678.
    Supreme Court of Mississippi.
    Aug. 10, 1983.
    John N. Satcher, Heidelberg, Thomas J. Lowe, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before PATTERSON, C.J., BROOM, P.J., and DAN M. LEE, J.

Reversed and the appellant is discharged.

WALKER, P.J., ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.


text:
    Robert L. RUSSELL v. STATE of Mississippi.
    No. 54389.
    Supreme Court of Mississippi.
    Aug. 10, 1983.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

George M. Arthur, Jackson, for appellant.

Bill Allain, Atty. Gen. by Anita Mathews Stamps, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J., DAN M. LEE and PRATHER, JJ.

Affirmed.

WALKER and BROOM P.JJ., ROY NOBLE LEE, BOWLING, HAWKINS and ROBERTSON, JJ., concur.