author: CIACCIO, Judge. REDMANN, Chief Judge,

text:
    Joseph BURRELL, Jr. v. Lillie SCHLESINGER, Tassin Pile Driving Co., Inc. Wausau Underwriters Insurance Co., and Globe Construction Co., Inc.
    No. CA 1478.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 24, 1984.
    Rehearing Denied Dec. 27, 1984.
    Writ Denied Feb. 15, 1985.

      Joel P. Loeffelholz, New Orleans, for appellant — Lillie Sehlesinger.
    Bruce S. Kingsdorf, Carl W. Cleveland, Carl W. Cleveland & Associates, New Orleans, for appellee — Joseph Burrell, Jr.
    Lynn L. Lightfoot, Kiefer & Lightfoot, Metairie, for appellees — Tassin Pile Driving Co., Inc. and Wausau Underwriters Company, Inc.
    Before REDMANN, C.J., and KLEES and CIACCIO, JJ.
   CIACCIO, Judge.

Plaintiff sued to recover for damage to his home alleged to have resulted from pile driving activities conducted on an adjacent lot. He named as defendants the owner of the adjacent lot, the general building contractor and the piling subcontractor. The owner and general contractor filed a third-party demand for indemnification against the piling subcontractor. After a trial on the merits, judgment was rendered in favor of plaintiff against the owner only. All other demands were dismissed.

The owner has appealed. Plaintiff has answered the appeal seeking to have the amount of the award increased, and to have the general contractor and piling subcontractor adjudged solidarily liable with the owner. For the reasons that follow, we affirm.

Appellant, the owner, has specified six assignments of error. The first two concern whether the piling subcontractor was negligent. The first assigned error complains of the trial judge’s failure to find the piling subcontractor negligent. In his reasons for judgment the trial judge specifically found “that the defendants’ work caused the damage to the plaintiff’s property”, but “the evidence adduced on the trial of this case failed to prove, by a preponderance of the said evidence, that either of the defendants was negligent.” We have reviewed the entire record and have considered the arguments made to this court and have concluded that we cannot say the trial judge was clearly wrong. We, therefore, will not disturb his findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The second assigned error complains that the trial judge dismissed the third-party demand against the piling subcontractor. The only argument presented for maintaining the third-party demand is premised upon finding the piling subcontractor negligent. The trial judge found no negligence, and we have affirmed that finding. Accordingly, we affirm the dismissal of the third-party demand. To borrow a passage from D'Albora v. Tulane University, 274 So.2d 825 (La.App. 4th Cir.1973), cert. denied, 278 So.2d 504 and 505 (La.1973):

To adopt the opposite view would ultimately oblige the skillful employee to indemnify (or at least contribute to) his employer or the general contractor or the owner: not because of negligence, im-prodence or want of skill, but because the job he was given to do was likely to cause damage (and did). 274 So.2d at 832.

Appellant’s third assignment of error addresses itself to the piling subcontractor’s claimed “immunity” under La.R.S. 9:2773, and the trial judge’s failure to hold the piling subcontractor liable in solido with appellant. La.R.S. 9:2773 provides:

Sec. 2273 Limitations on the responsibility of agents, contractors and representatives
A. It is the public policy of the state that the responsibility which may be imposed on an agent, contractor, or representative by reason of the responsibility of proprietors under Article 667 of the Louisiana Civil Code shall be limited solely to the obligation of such agent, contractor, or representative to act as the surety of such proprietor in the event the proprietor is held to be responsible to his neighbor for damage caused him and resulting from the work of such agent, contractor, or representative, and only in the event the proprietor is unable to satisfy any claim arising out of such damage. The agent, contractor or representative who is responsible for damages, as limited by this Section, shall have a right of action against the proprietor for any damages, costs, loss or expense which he may suffer in his capacity as the surety of the proprietor.
B. Nothing in this Section shall be construed to relieve a contractor of any liability which he may incur as a result of his own negligence or the improper performance of the work performed under the construction contract.
C. The provisions of this Section shall apply to all construction agreements entered into after the effective date hereof and may be waived by the contractor.

Although not specifically articulated in the assignments of error, appellant argues in brief that La.R.S. 9:2773 is unconstitutional. A litigant who fails to plead the unconstitutionality of a statute cannot legally raise the constitutional issue in the appellate court. Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971). Because appellant neither pleáded nor raised the issue at the trial level, we will not consider appellant’s constitutional claim.- Jackson v. Maloney Trucking & Storage, Inc., 442 So.2d 849 (La.App. 4th Cir.1983).

We find, however, that the trial judge did not properly apply La.R.S. 9:2773. The statute does not provide “immunity” to contractors. It limits their responsibility to acting “as the surety of such proprietor in the event the proprietor is held to be responsible to his neighbor for damage caused him and resulting from the work of such agent, contractor, or representative, and only in the event the proprietor is unable to satisfy any claim arising out of such damage.”

The trial court found that “[tjhere was ‘fault’ on the part of each of the defendants in causing the work to be done which they knew (or should have known) could damage the adjoining property.” (footnote omitted.) The court then correctly opined, citing D’Albora v. Tulane University, supra, that “both [the piling subcontractor] and [the general contractor] should be held to be solidarily liable to plaintiff, along with the landowner ... based upon La.Civil Code Article 667.” The court then went on to dismiss the demands against the piling subcontractor and the general contractor and rendered judgment only against the owner on the basis of La.R.S. 9:2773.

The court should not have dismissed thé piling subcontractor and the general contractor, but should have cast them in judgment as sureties to the owner under the conditions set forth in La.R.S. 9:2773. However, appellant has not sought this relief, but she has asked only that the piling subcontractor be cast in judgment alone, or as indemnifier, or in solido with her. Plaintiff’s answer to the appeal likewise does not properly present the judgment for modification in this manner. See La.C.C.P. Art. 2133: “... The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer ....” Neither of the contractors appealed. Accordingly, we have no appeal before us which would allow the judgment to be amended to add the piling subcontractor and general contractor as sureties.

Through her fourth assignment of error appellant complains that the trial judge did not find “victim fault” or the failure of the victim to mitigate his damages. Although the trial judge made no specific findings as to these particular questions, he did make a finding as to the quantum of damages suffered by plaintiff. We have reviewed the record and we do not find any abuse of the fact finder’s much discretion under La.C.C.Art. 1934(3), nor can we say that the findings are clearly wrong. We, therefore, will not disturb the quantum of damages awarded by the trial judge. Perniciaro v. Brinch, 384 So.2d 392 (La.1980).

In a similar fashion in his answer to the appeal, plaintiff complains that the trial judge failed to award him recompense for incidental damages. The trial judge specifically found that “[sufficient proof has not been offered to substantiate plaintiffs claims for other items of loss ....” For the same reasons noted above, this finding by the trial judge will not be disturbed.

In her fifth assignment of error appellant complains that the trial judge would not allow evidence of third-party fault, viz., the fault of NOPSI buses causing vibrations as they passed on the street in front of plaintiffs house. At trial defendant-appellant called as a witness a NOPSI bus driver. The witness began testifying about what occurs when he drives his bus on the street in front of plaintiffs house. Plaintiffs counsel reurged an objection that this evidence was “irrelevant and immaterial.” The trial judge sustained the objection, listened to defense counsel’s argument in favor of admissibility, and maintained that he would “rule it out.”

Defense counsel indicated that he would make a proffer. The colloquy between counsel and the court briefly contirn ued, and counsel again indicated that he would make a proffer. The court responded:

THE COURT:
You make the proffer. You know how I have it done. You put it in an envelope and seal it and it will go up to the Court of Appeal if the case goes up. I am not listening to it. Step down.

Counsel now complains in his brief that he was not allowed to make a proffer, and he argues that this is reversible error. See La.C.C.P.Art. 1636. The record indicates that counsel was told to make a proffer, as the recounting of events given above makes clear. In fact, counsel filed in the record below, which has come up to us in a sealed envelope with the record on appeal, a document he entitled “Proffer of Evidence Excluded at Trial”. We do not find that the trial judge refused the offer of proof, and, therefore, find no error in this regard.

As to appellant’s purported proffer, a review of this document reveals that it contains only an argument as to why the evidence should have been admitted. The document alludes to potential testimony from additional NOPSI employees. This other evidence, however, was never offered at trial and, therefore, never excluded. As a whole the document is not a proffer, but a mini-brief on this issue. A proffer is used to set forth the nature of the evidence, not to preserve counsel’s arguments in favor of admissibility.

We find that appellant failed to take advantage of the opportunity to make an offer of proof. Having made no offer of proof, appellant cannot now complain on appeal. Canty v. Terrebonne Parish Police Jury, 397 So.2d 1370 (La.App. 1st Cir. 1981), writ denied, 401 So.2d 988 (La.1981); Inniswold-Jefferson Terrace Civic Association, Inc. v. Louisiana Health Services and Indemnity Company, Inc., 396 So.2d 348 (La.App. 1st Cir.1981); Carroll v. Guillot, 337 So.2d 310 (La.App. 3d Cir.1976).

The sixth assignment of error complains that the trial judge, over timely objection, allowed an enlargement of the pleadings by plaintiff. Plaintiff’s petition complains that the damage caused by pile driving occurred “on or about” September 1, 1980. Trial evidence establishes that the pile driving activity occurred on August 22, 1980.

At trial defense counsel objected to plaintiff’s counsel’s questioning that the damage occurred on August 22nd. Plaintiff’s counsel retorted that August 22nd was “on or about” September 1st. The trial judge agreed, noting that in a case of this character the exact date is not particularly important. After continued discussion among both attorneys and the court, it was agreed that plaintiff would be asked about what happened to his house without regard to a date. So counsel asked, “What happened to your house?”. Plaintiff answered, and his testimony continued without further objection concerning the date on which the damage occurred.

Appellant now complains that she suffered prejudice as a result of an enlargement of the pleadings. Ultimately the questioning and testimony resumed in a manner which did not enlarge the pleadings; the evidence presented concerned the cause and extent of the damages without concern as to the exact calendar date on which they occurred. Even assuming the pleadings were enlarged by the date change, we find that appellant suffered no prejudice. She has not described any prejudice, we are not in a position to assume any, and our review of the entire trial record convinces us that counsel was fully prepared to defend against the allegations of the petition that the damage was caused by the pile driving regardless of the date. We find no error in the ruling of the trial court.

Accordingly, the judgment of the trial court is affirmed. All costs are to be borne by appellant.

AFFIRMED.

REDMANN, C.J. concurs with reasons.

REDMANN, Chief Judge,

concurring.

The only question presented by this appeal is whether the defendant owner is entitled to indemnity from the piling subcontractor. (The “general contractor” is the owner’s son, and the owner’s appeal does not ask that we cast her son). The only question presented by the answer to the appeal is whether the award against defendant owner should be increased.

I subscribe to the majority’s reasoning regarding the amount of the award.

I concur in the refusal of indemnity against the piledriving subcontractor on the ground that the only expert testimony is that the “major cause of the damage [to plaintiff owner’s house] was the filling of the [defendant owner’s] lot ... with a contributory cause being the piledriving which has shaken loose several loose [sic] pieces of plaster and caused them to fall.” Presumably the landfilling operation, which caused the shifting of plaintiff’s house, caused the “several loose pieces of plaster” to become loose and therefore in need of removal for replastering; so that the pile-driving’s causing their early “removal” by falling caused no additional damage.

The meaning and effect of La.R.S. 9:2773 therefore need not be discussed (although one may note that a piledriver who contracts with a lay owner — or perhaps with a “general contractor” inexpert on piledriv-ing, as the record suggests ours was — has a duty to advise the other contracting party that even skillful piledriving will probably cause damage to neighbors for which the owner will be liable and therefore needs insurance. See, analogously, McCall v. Tassin Pile Driving, Inc., 383 So.2d 1373 (La.App. 4 Cir.1980)).

(This writer has considered that the same lawyer represents both the defendant landowner and the “general contractor.” They presumably are satisfied that there is no conflict of interest between them — an unlikely conclusion were it not for the close family relationship.)


source: Caselaw Access Project

author: BOWES, Judge.

license: Public Domain

text:
    Mrs. E. Ruth Castle Jones, Wife of James I. JONES v. James I. JONES.
    No. 84-CA-69.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 1984.
    Writ Denied Jan. 14, 1985.

      John A.E. Davidson, Gilbert F. Ganu-cheau, Jr., Metairie, for appellee.
    Ferdinand J. Kleppner, Metairie, for appellant.
    Before KLIEBERT, BOWES and GRIS-BAUM, JJ.
   BOWES, Judge.

James Jones appeals a judgment of the trial court which (1) dismissed his exceptions of no right and no cause of action, (2) declared the Compromise Agreement signed by him and Mrs. Jones on September 1, 1982 to be valid, and (3) ordered him to pay his former wife $1,250.00 per month alimony beginning on December 1, 1984 “until such time as she remarries.” A

Mr. and Mrs. Jones had become legally separated by judgment of the district court in February 1980. Pursuant to that judgment, a community property settlement was entered into by both parties. Subsequently, Mr. and Mrs. Jones reconciled and lived together until April, 1982, when they again separated. Mrs. Jones filed a petition for separation, alleging Mr. Jones’ abandonment. In that proceeding, she also sought to set aside the previous community property compromise, and, further, asked for alimony pendente lite. After several pleadings and exceptions, which do not concern us at present, Mrs. Jones was awarded, according to the minute entry, a “loan” of $1,250.00 per month beginning June 1, 1982, to continue until the date of trial.

On September 1, 1982, the date of trial, the court granted a separation in favor of Mrs. Jones and ordered appellant to pay $1,250.00 per month alimony, commencing on the date of the original alimony rule. The judgment further annulled and set aside the previous (1980) community property agreement.

Also on September 1st, a joint motion by plaintiff and defendant was filed “to modify and terminate a matrimonial regime and for approval of agreement in connection therewith.” The petition stated that the present agreement sought to compromise and settle in full all issues between the parties connected with property rights, the previous settlement agreement, support payments, alimony pendente lite, and permanent alimony subsequent to any divorce.

On the date it was signed and filed, September 1, 1982, a second judgment approving, homologating and adopting the terms and provisions of the entire content of the agreement was signed by the trial court. It is this agreement which is the focal point of the pending appeal.

The pertinent portions of the agreement are:

... Deponents further declared that a Judgment of Separation from Bed and Board has been rendered in proceedings numbered 266-736 of the docket of the Twenty-Fourth Judicial District Court for the Parish of Jefferson, State of Louisiana, which Judgment was rendered and signed on September 1, 1982, and, therefore, the parties hereto do hereby enter into the following compromise settlement agreement of all further property rights, alimony rights, support rights, or any and all other issues existing between them:
... (2) JAMES I. JONES shall pay to the said EDDYE CASTLE JONES, a/k/a RUTH CASTLE JONES, the sum of ONE THOUSAND TWO HUNDRED FIFTY ($1,250.00) DOLLARS per month, each and every month, due and payable on the first of each and every month, commencing September 1, 1982, unless and until the said EDDYE RUTH CASTLE JONES, a/k/a RUTH CASTLE JONES shall remarry, and further provided that the said JAMES I. JONES does hereby declare and acknowledge that he does hereby grant full acquittance and discharge to the said EDDYE RUTH CASTLE JONES, a/k/a RUTH CASTLE JONES, waiving all rights to re-payment or reimbursement for all sums paid by JAMES I. JONES to ED-DYE RUTH CASTLE JONES, a/k/a RUTH CASTLE JONES since the date of filing of Petition for Separation in matter numbered 266-736 of the Twenty-Fourth Judicial District Court for the Parish of Jefferson;
... The said EDDYE RUTH CASTLE JONES, a/k/a RUTH CASTLE JONES, did further declare and acknowledge that as additional consideration for the conveyances made to her by JAMES I. JONES and the payments of money as expressed elsewhere in this agreement, she does hereby knowingly, intelligently, and with full counsel and knowledge, waive her rights to any and all payments for support, alimony, alimony pendente lite, and/or permanent alimony, of any nature, kind or description whatsoever, other than the sums of money expressed elsewhere in this agreement to be paid by the said JAMES I. JONES, and she does forever and without qualification renounce any rights to seek an increase in the payments specified elsewhere in this agreement, for any reason whatsoever, including but not limited to such reasons as illness, loss of income, and/or inflation.
The said EDDYE RUTH CASTLE JONES, a/k/a RUTH CASTLE JONES declared and acknowledged that she does hereby accept the conveyances and other stipulations and considerations expressed and described above, in full and complete satisfaction of any and all interests, be they property, alimony, or other interests, and she relinquishes any and all claims and demands of any kind, nature and description whatsoever to any community property, or other property owned by the said JAMES I. JONES, or previously acquired by him, or subsequently acquired by him, with the exception of those items and conveyances expressed hereinabove.

In July 1983, Mr. Jones filed for divorce based on no reconciliation for 6 months following a judgment of separation. Mrs. Jones answered, requesting alimony in the amount of $1,250.00 per month. The divorce was granted in October, 1983, and the alimony rule was tried separately on December 1st. Appellant filed exceptions of no right and no cause of action, alleging that the clause of the compromise, wherein he agreed to pay $1,250.00 per month to Mrs. Jones until her remarriage, was potes-tative and, therefore, null and unenforceable. The trial judge, after a hearing, dismissed the exceptions and found in favor of Mrs. Jones, as stated hereinabove. It is this judgment that defendant appeals, alleging as error:

The court erred when it dismissed Appellant’s Exception of No Right and/or No Cause of. Action finding the Compromise and Settlement Agreement herein dated September 1, 1982, to be valid and enforceable.
The court erred when it dismissed Appellant’s Exception of No Right and/or No Case of Action construing the terms of the Compromise and Settlement Agreement herein, dated September 1, 1982, as being alimony provisions and not general terms of a contract.

Under Civil Code Article 2024. a potesta-tive condition is defined as one which makes the execution of the agreement depend on an event which is in the power of one or the other of the contracting parties to bring about or hinder. Article 2034 declares those obligations null and void as potestative which depend exclusively on the will of the obligor. Pertinent to the case at bar is the Supreme Court’s discussion of potestative conditions in Conques v. Andrus, 162 La. 73, 110 So. 43 (1926).

There is nó prohibition and no nullity is pronounced against an agreement the execution of which by the obligor is made to depend on the will of the obligee or contractee.
And the reason for this difference in the effect of such a condition is: (1) That if the contract is made to depend solely on the will of the obligor there would be lacking a mutuality of obligation between the parties, without which no valid contract can exist; and (2) a contract by which a person assumes an obligation to do a certain thing and at the same time reserves to himself the privilege of electing not to execute is no contract at all.
This is not true, however, where the performance of - an obligation is made to depend on the will of the party to whom the promise is made. In all such cases when the obligee in the exercise of the option granted him elects to have the obligation in his favor executed, the contract which until that event happens is suspended becomes a commutative, binding, and enforceable contract.
... Neither the articles of the Code nor the jurisprudence of this state accord to an obligor the right to absolve himself from his obligation because the execution of such obligation is made to depend on the happening of an event which is within the power of the obligee to bring about or to hinder.

See also LaSalle Extension University v. Thibodeaux, 155 So. 53 (App.1934); and Commercial Union Insurance Co. v. Milazzo, 265 So.2d 298 (La.App. 4th Cir.1972).

Under the contract in question, Mr. Jones is obligated to pay $1,250.00 per month to Mrs. Jones, until she remarries. The obligation to pay is not dependent solely on an event which is within the power of Mr. Jones, the obligor, to bring about or hinder. Rather, the obligation arises from the past marital obligations imposed by Civil Code Article 160. The “event” to which appellant refers, Mrs. Jones’ remarriage, is clearly within the obligee’s will. The clause is, then, not potestative under the law and jurisprudence.

As to appellant’s second assignment of error, we agree with the trial judge that the obligation in question is “in the nature of an alimony agreement”; that the parties entered into a property settlement which contained an alimony agreement:

... “that the intention of these parties to be, that Mr. Jones wanted to be obligated to a set sum of money to Mrs. Jones; that he did not want her in any way, shape or form to be able to come back for an increase as their agreement so states, because of illness, loss of income, and/or inflation. And he wanted her to be bound by that.”

It is settled that spouses may contract, under certain circumstances, on the subject of alimony. C.C. Art. 1790 was amended in 1978, removing the incapacities of husband and wife to contract. This includes the right to contract on the subject of alimony. Beringer v. Beringer, 415 So.2d 429 (La.App. 1st Cir.1982). Under the facts of this case, we find there was no prohibition against Mr. and Mrs. Castle's agreement.

The record supports our conclusion that the agreement states a bargained-for arrangement advantageous to both parties. Mrs. Jones is assured of a set sum of monthly payments, regardless of any change in circumstances which ordinarily reduce or terminate those payments (other than remarriage). Should her income increase or needs decrease, she will not suffer a decrease in payment. On the other hand, Mr. Jones is assured that he will never have to face an increase, in the event of an unfortunate happenstance occurring to Mrs. Jones, such as illness or unemployment. In short, each party received benefits from the arrangement. Such does not change the character of the payments as alimony.

Considering the agreement as a whole, we are unable to conceive of a reason why Mr. Jones should stipulate to such payments if it were not to discharge his alimony obligation. The fact that the amount involved is precisely the amount originally prayed for as permanent alimony, and originally granted as such in the separation judgment, further bolsters our conclusion that the stipulated payments are alimony, and enforceable as such until the remarriage of appellee.

We are of the opinion that that portion of the agreement (emphasized hereinabove) which states that Mrs. Jones waives her rights to all payments for alimony “other than the sums of money expressed elsewhere in this agreement” is plainly understood to mean any alimony payments over, above, and beyond the alimony payments expressed in Section 2 (excerpted herein-above).

For the foregoing reasons, the judgment appealed from is affirmed. Each party will bear their own costs of this appeal.

AFFIRMED.

      . Art. 2034 Nullity of obligation based on potes-tative condition. Every obligation is null, that has been contracted, on a Potestative condition, on the part of him who binds himself.


author: GULOTTA, Judge. SCHOTT, Judge,

text:
    NEW ORLEANS FIREFIGHTERS ASSOCIATION v. CITY CIVIL SERVICE COMMISSION OF the CITY OF NEW ORLEANS, et al.
    No. CA-2075.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Rehearings Denied Dec. 27, 1984.
    Writs Denied Feb. 15, 1985.

      Ralph D. Dwyer, Jr., New Orleans, Louis L. Robein, Jr., Metairie, Wilfred H. Bou-dreaux, New Orleans, for appellants.
    Salvador Anzelmo, City Atty., Bruce E. Naccari, Asst. City Atty., Thomas Milliner, Deputy City Atty., New Orleans, for appel-lees.
    Before GULOTTA, SCHOTT and WARD, JJ.
   GULOTTA, Judge.

In this latest chapter of a storied and procedurally complex case, Local 632 of the New Orleans Firefighters Association (Union), the New Orleans Civil Service Commission, (Commission) and the City of New Orleans (City) appeal from another judgment by the trial court concerning overtime pay for New Orleans Firemen. We affirm.

BACKGROUND

Before turning to the contentions on appeal, a brief synopsis of this litigation is essential.

The salaries of municipal firemen in Louisiana are subject to the provisions of LSA-R.S. 33:1991 et seq., known as the Firemen’s Minimum Wage Law, and LSA-R.S. 33:2001 et seq., the Firemen’s Supplemental Wage Law. LSA-R.S. 33:1994 provides that a fireman shall be paid one and a half times his usual salary for every hour worked in excess of 60 hours per calendar week. LSA-R.S. 33:2002 further provides for extra compensation by the State to local fire department employees in addition to compensation by their employing municipality, parish or fire protection district. Pursuant to LSA-R.S. 33:2004(D), this State supplemental pay is to be included in the calculation and computation of the total wages paid to the firemen in the determination of employee benefits.

In 1979, the Union filed a declaratory judgment action against the City and the Commission to have the Commission calculate overtime benefits to New Orleans firemen based on their City pay and supplemental pay as provided by State statute, and not merely on their City pay alone as determined by the Commission.

After a trial on the merits, the trial court declared that overtime pay “is to be and should be calculated and computed on the combined basis of both base pay and State supplemental pay as provided by LSA-R.S. 33:2002(A) et seq.” The City and the Commission then appealed. In New Orleans Firefighters v. Civil Serv. Com’n, 406 So.2d 752 (La.App. 4th Cir.1981), we affirmed the judgment of the trial court, and the Supreme Court granted writs.

In New Orleans, Etc. v. Civ. Service, Etc., 422 So.2d 402 (La.1982), the Supreme Court, on the writ grant, held that State supplemental pay to firemen “must be considered as part of the floor under wages for the purpose of determining overtime wages” and that “the City Civil Service Commission is not free to ignore the legislative commandment to include State supplements in calculating overtime pay.” The Supreme Court then issued the following decree:

DECREE
“In adopting a uniform pay plan, the City Civil Service Commission is obliged to comply with and take into consideration the firemen’s minimum wage law, R.S. 33:991, et seq., and the firemen’s supplemental wage law, ordered to revise its uniform pay plan in accordance with these laws. Since there appear to be various ways in which the commission could comply with this decree, we limit our mandamus to the foregoing out of respect for the discretion vested in the commission by the constitution. The declaration of law and facts in this opinion shall have the force and effect of a final declaratory judgment. The judgment of the trial and appeals courts are amended to conform with this judgment.”

Following the Supreme Court’s decision, the Union filed a motion in the trial court for “supplemental and further relief” ordering the Commission and the City to comply with the Supreme Court’s decree and to formulate and implement a payment plan for the issuance of back pay to all present and former City Fire Department employees who were employed on July 1, 1979, (the effective date of a letter agreement between the Union and the City to include State supplemental pay in the calculation of overtime) through February 10, 1983 (the date of the implementation of a new pay plan by the Commission pursuant to the Supreme Court’s decree).

In written reasons for judgment granting the Union’s motion, the trial judge indicated that the plan adopted by the Commission “... did not include any provisions for back pay from July 1, 1979 to the implementation date of February 10,1983.” The trial court reasoned:

“It is obvious that the Supreme Court intentionally desired that the ... Commission implement their decree, which may include the issue of back pay.
Accordingly, the ... Commission is ordered, to consider and decide, within the spirit and letter of the Supreme Court’s opinion, the issue of back pay monies that may be due to the plaintiff firemen who were employed on July 1, 1979.”

Pursuant to this judgment, the Commission rendered a decision and amended rules, which were then submitted to the City for ratification. In the revised plan, the Commission denied plaintiffs all retroactive back pay, reasoning that it lacked jurisdiction over the matter and that the Supreme Court had not expressed any opinion on retroactivity. Further, the Commission concluded “that inclusion of State supplemental pay is required only for overtime exceeding 60 hours and not overtime from 47th through the 60th hour of any given week”, since LSA-R.S. 33:1994 “specifies the precise overtime standards envisioned by the legislature, [and] it must be read in pari materia with 33:2004(D)”.

After the Commission submitted this plan, the Union returned to the trial court with a second motion to prevent its implementation. The trial judge held that the firemen were entitled to receive adjusted overtime wages calculated on their base pay from City and supplemental pay from the State from July 1, 1979 to the date of the implementation of the 1983 revised pay plan. This judgment also held that under the revised plan of 1983, the firemen were to receive overtime pay at the rate of time and a half calculated on City pay for all hours worked between 47 and 60 hours a week, and time and a half on combined City and State supplemental pay after 60 hours.

The Union’s subsequent application for writs to the Louisiana Supreme Court was transferred to this court, 445 So.2d 1228, where the Union alternatively filed a petition for a devolutive appeal from the trial court’s judgment. We denied writs, but noted that the Union had been granted a devolutive appeal. That appeal, and those by the Commission and the City, are now before us.

CONTENTIONS

The Commission contends the trial judge erred in ordering payment of overtime retroactively to 1979, because the Supreme Court’s decree was silent on this issue and the Commission itself has no authority to order such payment. The Commission further argues that the firemen are entitled to time and a half (of their combined State supplemental and City pay) only for hours worked in excess of 60 hours per week.

On the other hand, the Union contends the Supreme Court decree did not prohibit retroactive pay, and further claims entitlement to overtime pay based upon the combined basis of City base pay and State supplemental pay for all hours worked in excess of 46 hours, not 60 hours, per calendar week. It further argues the Commission should be ordered to study and implement other provisions of the firemen’s minimum and supplemental wage laws, which establish a minimum salary structure for the various statutory firefighter classifications, maximum hours, paid sick leave, annual vacation, and work on holidays.

Although it does not dispute the Commission’s revised plan, the City contends the trial court erred in applying the pay plan retroactively. In alignment with the Commission, the City argues that the Supreme Court’s decree was silent on retroactive pay, and, further, that retroactive payment will impose a serious financial hardship upon the City. The City also adopts the Commission’s argument that the revised pay plan requires payment of the overtime pay based on combined City and supplemental State pay whenever the work week of a fireman exceeds 60 hours, not 46 hours as argued by the Union. Citing LSA-C. C.P. Art. 1878, the City also argues that the Union failed to file a petition via ordi-naria in this declaratory judgment action instead of proceeding by summary motion.

MERITS

Procedure

At the outset, we reject the City’s contention that the trial court erred in ruling on the Union’s summary motion in the absence of a prior petition via ordinaria.

LSA-C.C.P. Art. 1878, relied on by the City, provides:

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application is considered sufficient, the court, on reasonable notice, shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.

Assuming, without deciding, that the “petition” contemplated by this codal article is a petition via ordinaria, the City did not raise an objection in the trial court to unauthorized use of the summary proceeding or non-conformity of the Union’s petition with any of the requirements of LSA-C.C.P. Art. 891. Its failure to raise timely these dilatory exceptions constitutes a waiver. LSA-C.C.P. Art. 926. Accordingly, we find no error in the trial court’s ruling on the Union’s application for relief by summary motion.

Retroactivity

We likewise reject the City and the Commission’s arguments that the trial court erred in ordering the calculation of overtime benefits to fire department personnel based on the combined City and State supplemental pay retroactively to July 1, 1979 (the effective date of the letter agreement between the City and the Union to include State supplemental pay in calculating overtime). Although the Supreme Court in New Orleans, Etc. v. Civ. Service, Etc., supra, did not expressly mandamus the Commission to calculate overtime benefits retroactively, it is implicit in the Supreme Court’s opinion and the entire history of this litigation that retroactive calculation of overtime pay is necessary to comply with the mandate of the State statutes.

The 1979 letter agreement between the City and the Union provided for overtime wages based on a combined base and supplemental salary. The Union filed suit to compel the Commission to alter its pay plan in accordance with this agreement and the State statutory provisions concerning firemen's wages and benefits. In its initial judgment, the trial court concluded that the agreement between the City and the Union was enforceable because the Civil Service rule for calculation of overtirtie wages was ambiguous and did not conflict with the letter agreement or the legislative mandate of LSA-33:2004(D) providing for inclusion of State supplemental pay in computing overtime.

In New Orleans, Etc. v. Civ. Service, Etc., supra, the Supreme Court, unlike the trial judge, did not find the Commission’s pay plan to be “ambiguous” and concluded that the City’s agreement with the Union was in conflict with the pay plan. The Supreme Court specifically noted “... that the agreement [between the City and the Union] is therefore unenforceable unless it can be shown that the Civil Service Commission rule is invalid.” (Emphasis ours, supra at page 405.) Significantly, however, by later holding in the opinion that the Commission’s rule was in contravention of the State’s statute concerning firemen’s wages, the Court implicitly recognized the enforceability of the 1979 letter agreement between the City and the Union. Under these circumstances, we conclude that by amending and affirming the earlier judgment and ordering the Commission to formulate a new pay plan, the Supreme Court intended the Commission to award overtime pay retroactively to the effective date of the City’s agreement with the Union.

We find further support for a retroactive award of overtime pay in the Supreme Court’s recognition in its opinion that the Firemen’s Minimum Wage Law took effect in New Orleans, as it previously had elsewhere in the State, upon adoption of the 1974 Constitution, without the necessity of “reenacting” the statute. Since 1974, therefore, the Commission has been subject to the State law concerning overtime pay for firemen. As a practical matter, therefore, upon adoption of the agreement between the City and the Union in accordance with those overtime provisions in 1979, the Commission became obligated to revise its pay plan to comply with that State law. To allow the Commission to calculate overtime only prospectively under its revised plan would violate the spirit of both the Supreme Court’s opinion and the applicable law.

We find further authority for the trial court’s judgment of retroactivity in Spillman v. City of Baton Rouge, 441 So.2d 1243 (La.App. 1st Cir.1983), cited by the trial judge. In Spillman, Baton Rouge firemen likewise alleged that the City of Baton Rouge had failed to include State supplemental pay in computing overtime under LSA-R.S. 33:1994. Relying on the Supreme Court’s opinion in New Orleans, etc. v. Civ. Service, etc., supra, our brothers on the First Circuit in Spillman, concluded that with the adoption of the 1974 constitution the State supplemental pay statutes became applicable to the City of Baton Rouge, which, like New Orleans, had formerly been insulated from the firemen’s wage statutes because of the city’s home rule charter status under the 1921 Constitution. The Spillman decision affirmed the trial court’s award of “accrued” overtime pay to Baton Rouge firemen as a result of this change in the Constitutional provision. See also Turner v. City of Shreveport, 437 So.2d 961 (La.App. 2nd Cir.1983), which likewise retroactively awarded longevity pay for firemen based on a combination of base and state supplemental pay. A similar retroactive application of the law is necessary in the instant case.

Hourly Rate of Overtime Pay

Under the Commission’s revised plan of 1983, firemen were to receive time and a half for all hours between 47 and 60 hours per week calculated on City pay only, and time and a half on combined City and State supplemental pay for overtime after 60 hours. The trial judge concluded that the overtime rules of the proposed pay plan are within the power and authority of the Civil Service Commission and not in conflict with the State’s statutory scheme.

The Union contends, however, that the overtime provisions of the revised pay plan contravene LSA-R.S. 33:2004(D), which provides that additional State supplemental pay shall be included in the calculation of any “employee benefits” such as overtime pay. According to the Union, because the City of New Orleans has chosen to pay overtime after 46 hours, it must comply with the clear mandate of LSA-R.S. 33:2004(D) and use the combination of City and State supplemental pay as the basis for calculating all such overtime. We disagree.

LSA-R.S. 33:1994 provides that the maximum hours of work required of firemen shall be 60 hours per week, but that for each hour worked in excess of 60 hours in any week, a fireman “shall be paid at the rate of one and one-half times his usual salary....” The Supreme Court in New Orleans, etc. v. Civ. Service, etc., supra, interpreted this provision and the other elements of the Louisiana statutory scheme to “establish a floor under firemen’s wages and a ceiling over hours that can be worked without receiving premium pay, resulting in a single scheme to raise substandard wages first by a minimum wage, and then by increased pay for overtime.” The Supreme Court further stated, “Together our statutes require that a fireman must be paid at least $540 per month and receive one and one-half times his usual pay for any time worked over sixty hours in a calendar week.” (Emphasis ours, supra at p. 412)

Reading the pertinent statutory provisions, together with the Supreme Court’s interpretation, we conclude that although State supplemental pay must be considered in calculating overtime wages for hours worked in excess of 60 hours per week, it need not be considered in calculating overtime for hours worked in excess of a normal week up to the 60 hour point. The Louisiana fireman’s minimum and supplemental wage laws merely place a floor under wages and a ceiling over hours that can be worked at straight time pay. Within these statutory boundaries, the Commission is free, in its exercise of discretion, to tailor its own pay plan.

The Commission’s provision for overtime pay at the rate of one and one half times combined City and State supplemental pay for work in excess of 60 hours per week is in accordance with the minimum statutory requirements. For overtime between 47 and 60 hours per week, the Commission is free to set its own rate of overtime pay. Accordingly, we cannot say the Commission abused its discretion calculating overtime at the rate of time and a half for all hours worked between 47 and 60 hours per week on the basis of City pay only. The Commission’s plan setting the rate of overtime pay constitutes one of the legitimate “various ways”, envisioned by the Supreme Court, whereby the Commission could comply with the State statutory scheme.

Other Provisions of the Firemen’s Minimum Wage Law

We further reject the Union’s request that the Commission “be ordered to consider the remaining provisions of the firemen’s minimum wage laws.” According to the Union, the Commission’s proposed pay plan rules are silent concerning a minimum salary structure for various statutory firefighter classifications (LSA-R.S. 33:1991-1992), maximum hours (LSA-R.S. 33:1994), sick leave and vacation (LSA-R.S. 33:1996), and work on holidays (LSA-R.S. 33:1999). The Union argues that the Commission should be ordered to “study and implement” these provisions in its proposed rules.

The relief requested by the Union is not pertinent to this action for a declaratory judgment. In the present posture of the case, the Commission should be well aware of the need to adhere to the firemen’s minimum and supplemental wage laws. It is free to exercise its discretion in formulating a pay plan, so long as it complies with the statutory guidelines and requirements.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

SCHOTT, J., dissents in part.

SCHOTT, Judge,

dissenting in part:

I respectfully dissent from that part of the majority opinion which affirms the trial court’s decision that the plaintiffs are to receive overtime pay on the basis of state supplemental pay retroactive to July 1, 1979.

This date hardly seems appropriate when the history of the case is considered. Plaintiffs had been contemplating a strike against the city when on March 1, 1979, the then Chief Administrative Officer of the City of New Orleans, Reynard Rochon, advised the head of their union that he was recommending to the Civil Service Commission that the pay plan for plaintiffs be amended so as to include state supplemental pay in the computation of overtime. Rochon further stated that unless the commission made the change by July 1, 1979, the city administration would make the change on its own.

Shortly after July 1 the commission filed suit against Rochon and the city to enjoin them from making the change. The trial court denied the commission injunctive relief, but this court granted certiorari and reversed the trial court, ordering an injunction against the city from including the state supplement in the computation of overtime. Civil Serv. Com’n, Etc. v. Rochon, 374 So.2d 164 (La.App. 4th Cir.1979). Regardless of the city’s intentions it could not adjust the overtime pay because this would invade the constitutional prerogatives of the commission which alone has authority in the area of compensation for civil service employees of the city.

Thus, the only significance of the July 1, 1979 date is its selection by the then Chief Administrative Officer of the City to pay this enhanced overtime compensation to the plaintiffs. However, he had no authority to make this commitment and his agreement was null, void, and without effect. Yet the trial court accepted this date as the one from which plaintiffs are to receive enhanced overtime pay.

The central legal issue in the case has always been whether the firemen’s minimum wage law, R.S. 33:1991, et seq., is binding on the commission. In other words, must the commission, whose authority to set wages for civil service employees stems from the constitution, defer to the legislature in this area of overtime computation for firemen? In the Rochon case we noted the following:

“... Should the city, or the individuals here involved, be of the opinion, as they apparently are, that under the present law the Commission is mandated to consider both city salaries and supplemental state benefits as the basis for computing overtime pay, their remedy is to take proper court action against the commission to enforce that believed mandated duty.” 374 So.2d at 167.

The Rochon decision was handed down on July 20,1979. Plaintiffs quickly reacted by filing a suit on July 26, 1979 for a declaratory judgment against the commission on the supplemental pay — overtime computation issue. After plaintiffs prevailed in the trial court and this court, 406 So.2d 752, the supreme court took the case on writs and handed down an opinion on October 29, 1982. 422 So.2d 402.

The court’s opinion makes it quite clear that the issue was not an easy one to resolve. Only after studying the remarks of delegates to the constitutional convention of 1973, considering the new constitution’s effect on the court’s own previous decisions in Louisiana Civil Service League v. Forbes, 258 La. 390, 246 So.2d 800 (1971) and Barnette v. Develle, 289 So.2d 129 (La.1974) and comparing the constitutional authority of the legislature in the area of firemen’s pay with the general constitutional authority of the commission did the supreme court reach a difficult decision. The commission was bound to include in the firemen’s pay plan provisions that state supplemental pay be considered in the computation of overtime pay. This opinion became final on December 17, 1982 when the supreme court denied rehearings.

In obedience to the court’s mandate the commission adopted a new pay plan in April, 1983 which included the enhanced overtime provisions prospectively, but which declined to award any retroactive benefits in this area. On motion of plaintiffs attacking this new pay plan, the trial court decreed that enhanced overtime pay had to be given from July 1, 1979 to the present. My colleagues have agreed. I respectfully submit that logic and sound policy militate against this position and that it is contrary to the position taken by the supreme court.

It cannot be seriously argued that the position of the commission was frivolous. A fair reading of the supreme court decision at 422 So.2d 402, readily convinces one that the commission was justified in taking the position that it did not have to defer to the legislature with respect to the firemen’s minimum wage law. From July, 1979 until April, 1983 it prudently exercised its right to have this position considered and decided by the courts. In the meantime the city budget did not include the enhanced overtime. Government is supposed to operate on the theory that current expenses do not exceed current revenues. When a pay raise is adopted it is funded either by increased revenues or reduced expenses in other areas. Sound fiscal planning is thwarted when the government is required to pay five years of pay increases because a group of employees convinced the courts that their constitutional arguments should prevail over the commission’s and the city’s.

I am aware that the government must frequently make retroactive payments as when an employee is found to have been wrongfully discharged and is restored to duty or when an injured employee is denied compensation benefits and later found to be entitled to them. But in such cases the ultimate judicial decision provides justice to the individual — a wrong is redressed. The employee gets what he was entitled to in the first place. On the other hand, the ultimate decision of the supreme court here was a broad policy type decision reached after an intricate reasoning process concerning constitutional and statutory provisions. The supreme court decision was not an award to compensate the plaintiffs for injury done to them but a declaration for the benefit of plaintiffs, the commission, and the public that in the future this is how overtime pay is to be computed.

Next, I am not persuaded from reading the decision that the supreme court intended for enhanced overtime pay to be awarded retroactively. In argument to this court, counsel told us that the question of retroactive pay was argued to the high court and after its decision came down both sides argued the point in applications for rehearing. If the supreme court intended plaintiffs to receive retroactive pay they would have said so. This was in October— December, 1982. The impact on the public fisc of requiring retroactive pay then would have been substantially less severe than now, two years later. Since the pill would have been much easier for the city to swallow then the court would have prescribed it if that was their intention. By declining to prescribe it they indicated that it was not appropriate.

Finally, the language of the decree does not suggest retroactivity. It reads that the commission “[i]n adopting a pay plan ... is obliged” to consider the firemen’s minimum wage law. “... [T]he commission is ordered to revise the uniform pay plan in accordance with these laws.” The connotation is for the commission to draft a pay plan for the future. If the court intended to require the city to pay enhanced overtime from July 1, 1979 why would the commission have to be involved? Why would a pay plan be needed for this purpose? This would involve nothing more than a mathematical computation of the benefits due and payment by the city. To conclude that the court intended to award enhanced overtime retroactively is to read something into the decree which is not there.

      . LSA-R.S. 33:1994(A) in pertinent part provides:
      A. The maximum hours of work required of firemen covered by this Sub-part in cities having a population of thirteen thousand or more ... in any calendar week shall be sixty hours.... For each hour so worked in excess of sixty hours in any calendar week a fireman shall be paid at the rate of one and one-half times his usual salary, to be determined by reducing his average monthly salary to an hourly scale.

      . LSA-R.S. 33:2004 provides in pertinent part:
      D. The additional compensation paid by the state to municipal ... fire department employees as provided by this Sub-part shall be included in the calculation and computation of the total wages paid to the employee ... as well as in the determination of retirement eligibility and benefits ... as well as in the determination of any other employee benefits, sick leave, or disability pay....


author: SCHOTT, Judge. GULOTTA, Judge,

text:
    Mrs. Betty R. HENRY v. Joseph WILLIAMS.
    No. CA 2000.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Rehearing Denied Dec. 27, 1984.
    H. Muldrow Etheredge, The Law Offices of Owen J. Bradley, Sherman F. Raphael, New Orleans, for plaintiff-appellant.
    Jacob Kansas, Law Office of Jacob Kansas, New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and WARD, JJ.
   SCHOTT, Judge.

This is a suit for damages for injuries sustained by plaintiff when she fell through a hole in the bathroom floor of the house she rented from defendant. The trial court awarded her $750.00 in general damages, and she has appealed seeking an increase in the award. Defendant has neither appealed nor answered the appeal. The issue is whether the trial judge abused his discretion in the amount of the award.

Plaintiff testified that on October 24, 1981 at about 8 A.M. she stepped into her bathroom to grab a tissue and her right leg went through the floor to her waist or stomach with the left leg inside the house. She extricated herself using the left leg as support. At first she felt dizzy and nervous but she thought she could go to work. However, by 10:30 A.M. she was having pains in her back and vagina so she returned home. Later she began to bleed from the vagina. At 1 P.M. she went to the emergency room of Saint Claude General Hospital.

The hospital record contains the following description of the accident:

“Alert & oriented 26 yo c/o falling 8:30 thru bathroom floor, hit pubic on pipe, has shooting pains, twisted (L) ankle, twisted low back [with] pain ‘shooting’ up the middle to mid back...”

X-rays of her lumbar spine and laboratory tests on her urine and vaginal fluids were made. The final diagnosis was “(1) Multiple contusions” and an unrelated infection.

On October 31 plaintiff was examined by Dr. D.S. Condie, a general surgeon. She told him she fell into a hole in her bathroom “and sort of spread — eagled herself in that fashion. And there was a pipe apparently within that hole, and she sort of straddled it, hitting her vaginal area.”

Dr. Condie reviewed the St. Claude hospital record of October 24, 1980 and interpreted its findings to include multiple contusions and tenderness of various areas including the legs, back, and labia. He stated that a fall such as described by plaintiff would be consistent with the injuries listed including pain in the lower back and “a good bit of swelling in the vaginal area.” Based on his examination of plaintiff Dr. Condie’s diagnosis was a dorsal and a lumbosacral strain and a contusion of the labia. He treated her back with ultrasound, prescribed muscle relaxants and sedatives, and recommended moist heat, showers and therapy three times each week.

Dr. Condie further testified as follows: Plaintiff returned on November 14 and, according to his notes, gave a history of falling into the hole again, aggravating her back injury. He administered ultrasound on that day and again on November 20 and 21. She next returned on December 29 and had improved, but he continued to recommend heat and medication. He saw her next on January 7, 1981, March 9 and March 24 when she still had tenderness and spasm in the dorsal and lumbar areas. At this point he recommended she see an orthopedist who examined her on June 25 and found that she sustained a lumbosacral sprain which was resolving satisfactorily and did not require further medical therapy. At this point Dr. Condie discharged her.

Defendant testified on cross examination that following plaintiffs report of the accident he inspected the bathroom and found a hole in the floor next to the toilet so small that “you could not get your fingers down through there.” However, when confronted with his deposition testimony that the hole was four inches by fifteen inches, he stated, “I would like to change that, because I was wrong.” Later in direct examination he testified that he installed “a little strip” around the toilet to cover the hole.

Plaintiff introduced four pictures of the bathroom floor taken two days after the accident. Nothing in the record challenges their accuracy or authenticity. They show a hole in the floor large enough for one to step into and having obvious characteristics of having been pushed through as though someone had stepped into it. Also, it clearly shows a pipe running just below the floor’s level.

In the trial court’s reasons for judgment, the ultimate conclusion is that “the only damage she had to her leg was the scratch on the ankle ... that the injuries were minimal and the time away from work was correspondingly minimal and not attributable to the accident.” But the court’s preface to this statement demonstrates that the conclusion was based on premises not supported by the record.

At the outset of the reasons, the court questioned plaintiff’s version of the accident in view of defendant’s statement that the hole was four inches by fifteen inches, “especially in view of the fact that the accident happened on October the 24th, and she did not see Dr. Condie until the 31st.” Next, the court questioned plaintiff’s failure to call her boyfriend as a witness in her behalf. The court then reasoned as follows:

"... She sustained, according to the reports and hospital records of St. Claude General, a slight scratch to the ankle of the right leg which would make it almost impossible for her to fall through a hole and not damage the leg to the extent that Dr. Condie could see no damage to the leg itself, nor was the leg in anyway injured.”

The court disposed of plaintiff’s photographs with the comment that they “do not agree with what Mr. Williams’s testimony is insofar as the size of the hole. The Court believes that the size of the hole is set forth by Mr. Williams as being four inches by fifteen inches, which would be more in keeping with the ankle injury than would be the testimony of Mrs. Henry.”

The first problem with these reasons is their failure to recognize that only a few hours after the accident plaintiff sought emergency treatment for a vaginal complaint and back trouble. The trial court was clearly wrong in suggesting that the first time she sought medical treatment was when she saw Dr. Condie a week later.

Next, we are unable to agree with the trial court that plaintiff’s failure to call her boyfriend can be held against her. Her testimony was that he had left her some time prior to the trial and was in Texas at trial time. She could not produce him as a witness under these circumstances.

Next, the trial court’s reference to the report of the St. Claude General Hospital seems to imply that she had but a slight scratch on her ankle. This is clearly wrong. The report states that she had “multiple contusions” which Dr. Condie interpreted to include a contusion in the vaginal area.

The trial court reasoned that since plaintiff had but an ankle injury it would follow that the hole could not have been as large as the one depicted in the photographs taken by plaintiff but would be in keeping with the four by fifteen inches testified to by defendant. The first problem with this reasoning is its failure to properly consider the hospital record. Since she did have injuries beyond an ankle scratch, a valid conclusion cannot be based on the premise that all she had was the scratch. Furthermore, defendant never did testify without equivocation that the hole was four by fifteen inches. At first he said there was a hole the size of one’s finger, then when confronted with his deposition statement that the hole was four by fifteen inches, he said he didn’t remember. In testifying on his case in chief defendant stated that his agent got a report from plaintiff that she fell through the floor whereupon he called on her and inquired about it. She then told him she hadn’t fallen through the floor at all but had made the complaint just to get him to fix a “crack” in the bathroom. Defendant said, “I went and got a little strip and put it right in front of the toilet so her children would not stick their hand down that.” He went on to deny that there were any holes or weak spots in the floor. (Tr. 179-181)

Had the trial judge disbelieved plaintiff entirely and dismissed her case we would be compelled to affirm on the basis of his credibility determination. But instead he found that she fell, somehow, through a four by fifteen inches hole (which has no support in the record) and sustained only a scratch on her ankle (which he found was her only injury when she was examined by St. Claude General— clearly wrong by reference to the report.) Finally, it does seem inconceivable that this plaintiff could have faked the photographs to make them fit the accident which Dr. Condie said was consistent with multiple contusions including one on the labia and dorsal and lumbosacral strain or sprain.

Since the trial judge found only a scratched ankle for which he awarded the plaintiff $750.00 we increase the award to $3,000.00. In all other respects the judgment is affirmed. Costs of this appeal are assessed against defendant.

AMENDED AND AFFIRMED.

GULOTTA, J., concurs, assigning reasons.

GULOTTA, Judge,

concurring.

I concur with the majority’s result increasing the award from $750.00 to $3,000.00. The medical evidence and photographs of the floor are strongly supportive of a conclusion that the plaintiff sustained greater injury than an ankle scratch. Affirming the trial court’s judgment would require disregarding the hospital report, Dr. Condie’s interpretation of that report and his examination and diagnosis. I find no basis for disregarding these reports and the photographs.

Accordingly, I concur with the result reached by the majority.


author: KLEES, Judge.

text:
    Bill GALLARDO v. NEW ORLEANS STEAMBOAT COMPANY.
    No. CA-1953.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Rehearing Denied Dec. 27, 1984.

      Clyde A. Ramirez, I. David Warner, III, Patricia D. Miskewicz, New Orleans, for plaintiff-appellee Bill Gallardo.
    E.S. Ned Nelson, Bryan, Nelson, Allen, Schroeder & Stephenson, New Orleans, for defendant-appellant New Orleans Steamboat Co.
    Before REDMANN, C.J., and KLEES and GARRISON, JJ.
   KLEES, Judge.

On October 12,1981, plaintiff filed suit in the district court against the New Orleans Steamboat Company claiming personal injuries and property damage in the amount of $31,000.00. A trial was held, and on October 7, 1983, the district court rendered judgment in favor of the plaintiff in the amount of $51,333.32, including $50,000 in general damages. In his Reasons for Judgment, the trial judge found that the accident was caused solely by the negligence of defendant’s employee, who failed to use reasonable care in opening a door, which struck Plaintiff. The trial judge also found that the accident dramatically increased the plaintiff’s pain from a prior back injury, which had become manageable before that time, and additionally, had caused a reherniation of the L4-5 disc, as revealed by the CAT scan. The possibility that the plaintiff might elect surgery in the future was held to be too subjective to support an award for future medical expenses. Finally, the trial court found there was no loss of income caused by the accident.

The defendant appeals this decision on the grounds that the award for general damages is excessive and furthermore, that the trial court should have found the plaintiff negligent and reduced the award accordingly. For the following reasons we affirm the Trial Court’s judgment on both issues.

FACTS

On May 19, 1981, the plaintiff, a safety consultant, went aboard the Natchez with Mr. Steve Koenig and Ms. Bonnie Zakotnik, both attorneys. Mr. Koenig and Ms. Zakot-nik had employed the plaintiff to inspect an area of the Natchez where a client of theirs had fallen. The three boarded the steamboat as fare-paying passengers.

The accident occurred while the three were on the first deck of the boat, preparing to photograph a particular stairway. They were in an area where there were several chairs. Mr. Koenig was seated in a chair placed against the ship’s bulkhead and just to the left of a double swinging door. The plaintiff was standing in front of Mr. Koenig, talking to him and changing the film in his camera, when an employee of the Natchez came through the swinging door very quickly, causing one side of the metal door to strike the plaintiff on his right side. The plaintiff stumbled, but did not fall. Shortly thereafter, the plaintiff reported the accident to the vessel’s captain. The plaintiff’s arm was red in the area where he had been hit, and he was also complaining of damage to his camera.

At the time of this accident, the plaintiff was being treated on a regular basis for several pre-existing injuries by Dr. Kenneth Adatto, an orthopedic surgeon. These injuries included residual back pain following the surgical removal of a ruptured disc in 1977, neck pain caused by a whiplash automobile accident in 1980, and a problem with his hand that eventually necessitated surgery in 1982. On May 19, 1981, just after disembarking from the Natchez, the plaintiff went to see Dr. Adatto complaining of pain in his right side and back. Dr. Adatto found bruises on plaintiffs right arm and right knee, as well as a back strain. To date, Dr. Adatto has treated the plaintiff conservatively, using drugs and an electronic device known as a TNS machine (Trancutaneous Nerve Stimulator). The plaintiff has been able to continue working as a safety consultant, with virtually no loss of income.

A CAT scan of the plaintiffs back taken in June of 1982 showed a soft tissue scar and possible ruptured disc at the L4-5 level, the same area as plaintiffs prior back surgery. Dr. Adatto indicated that while an operation was warranted, if the patient elected not to operate, he would not operate. He testified in deposition admitted into evidence that “We know he has a ruptured disc there, and if he wants it taken care of there is an operation available”.

LAW

QUANTUM

Before a Court of Appeal can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in determining the quantum. Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976). Even if it finds such an abuse of discretion, the appellate court cannot simply decide what it considers to be an appropriate award based on the evidence; rather, it can alter the award only to the extent of lowering (or raising) it to the highest (or lowest) point which is reasonably within the discretion of the lower court. Id.

After reviewing the record in this case, we do not find that the trial judge abused his discretion in awarding $50,000.00 in general damages. At the time of this accident, the plaintiff, Mr. Gallardo, had been suffering with a bad back since 1973, when he was working as an air traffic controller and a chair fell out from under him. This injury required plaintiff to take medication that disabled him from being an air traffic controller and eventually necessitated surgery. Following the surgery, plaintiff still had residual back pain and limited motion, as is common in patients who have undergone this type of operation. However, after he began using the TNS machine in November of 1980, plaintiffs back improved considerably. The plaintiff testified that in January of 1981, he began feeling “like a human being” again for the first time since the 1973 accident. This testimony was corroborated by the plaintiff’s wife. Between January of 1981 and May 19, 1981, the date of the accident aboard the Natchez, the plaintiff was having little or no pain in his back, although he continued to see Dr. Adatto regularly and to take pain medication for his neck and his hand.

Following the incident aboard the Natchez, the plaintiff began experiencing back pain again, which caused him to resume frequent use of the TNS machine and to take more medication. The plaintiff testified that he is taking medication “constantly”, except when he is working because the medicine has a narcotic effect. According to Dr. Adatto’s notes, the plaintiff complained that he was only able to work a few hours at a time before resorting to the medication. In addition, Mrs. Gallardo testified that since the accident, her husband has been unable physically to do everything he could do prior to the accident — that indeed, he is unable even to change a light bulb.

Under Louisiana law, a tortfeasor must take his victim as he finds him and is responsible for the consequences of his tort although the damages so caused are greater because of a prior condition of the victim which is aggravated by the tort. Reck v. Stevens, 373 So.2d 498, 502 (La.1979). In this case, there is ample evidence that the accident aboard the Natchez greatly aggravated plaintiffs pre-existing back injury, which had become manageable just prior to the accident. Defendant cites in its brief several prior decisions involving back injuries in an effort to show that the trial court’s award in this case is excessive. We do not find these decisions persuasive. Moreover, the Louisiana Supreme Court has made it clear that prior awards must not be the primary tool used by an appellate court to determine whether damages are excessive; rather, the appellate court must look first to the individual circumstances of the present case. Reck v. Stevens, supra, at 501. After examining the particular circumstances of this case, we conclude that the award for general damages does not exceed the highest point reasonably within the discretion afforded the trial court.

CONTRIBUTORY NEGLIGENCE

In order to disturb the district court’s judgment that the accident was caused solely by the negligence of defendant’s employee, we must find manifest error in that judgment. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). Our review of the facts reveals no such manifest error.

Both Mr. Koenig and Ms. Zakotnik testified that the defendant’s employee came through the door very fast. Mr. Koenig stated that he came through the door “like a bat out of hell”. The employee himself admitted that he went through the door without looking, with his head down, although each side of the door had a glass window in it. The plaintiff, Mr. Gallardo, was not standing in a restricted area, but rather in an area where the defendant had allowed chairs to be placed. Ms. Zakotnik testified that she and her companions had not moved the chairs, and the vessel’s captain stated that his employees had the responsibility of insuring that passenger chairs remained in their proper places.

This evidence amply supports the trial court’s conclusion that the accident resulted solely from the defendant’s fault. A common carrier is required to use the highest degree of care, diligence and skill, and is liable for the slightest negligence, or lack of care, resulting in injury to its passengers. This duty of care is subject only to the condition that the passenger must not contribute to his injuries by any want of ordinary care on his part. Gaines v. Aetna Casualty & Surety Co., 110 So.2d 851, 853 (La.App. 1st Cir.1959); Johnson v. New Orleans Public Service, Inc., 139 So.2d 7, 9 (La.App. 4th Cir.1962). Applying this standard, we find that the defendant breached its duty of care as a common carrier, and furthermore, that the plaintiff was not negligent in any manner.

Accordingly for the foregoing reasons, we affirm the Judgment of the trial court. Costs of this appeal are to be paid by Appellants.

AFFIRMED.


author: LOBRANO, Judge. SCHOTT, Judge,

text:
    Gary E. PICOU v. Brian FERRARA, et al.
    No. CA-1361.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Rehearings Denied Dec. 27, 1984.

      Paul A. Bonin, Henry P. Julien, Jr., New Orleans, for appellee.
    Dennis M. Ferrara, New Orleans, for appellants.
    William A. Porteous, III, Porteous, Hainkel, Johnson & Sarpy, New Orleans, for appellant.
    Before REDMANN, C.J., and SCHOTT, KLEES, LOBRANO and WARD, JJ.
   LOBRANO, Judge.

The instant appeal arises as a result of a collision between an automobile and a motorcycle which occurred on September 6, 1977 at the intersection of Elysian Fields Avenue and New York Street in the City of New Orleans. The automobile was driven by defendant-appellant, Salvator Ferrara, (hereinafter Ferrara), and the motorcycle was driven by plaintiff-appellee, Gary E. Picou (hereinafter Picou).

Picou filed suit against Ferrara, Fer-rara’s insurer, American Indemnity Insurance, and his employer Ferrara, Inc. Prior to the trial of this matter Ferrara died and his succession, through the testamentary executor Brian A. Ferrara, was substituted as party defendant. On March 10, 1983, in conformity with the verdict of the jury, judgment was rendered in favor of Picou in the amount of $283,500.00. Specifically, the jury found both Ferrara and Picou negligent, but also found that Ferrara had the last clear chance to avoid the accident.

All parties have appealed. Ferrara specifies numerous errors in the trial court, and Picou requests an increase in the award as well as a reversal as to his contributory negligence. After a review of the briefs and the record, we perceive the crucial issue to be whether or not the doctrine of last clear chance is applicable to the facts of this case.

The accident occurred between 9:20 and 9:40 a.m. on a bright sunny day. Ferrara, after transacting business at the Hibernia Bank on Elysian Fields Avenue, backed out of the bank parking lot and proceeded north on Elysian Fields, a four lane divided roadway, toward the intersection of New York Street where he was to turn left. New York Street is approximately 256 feet from the Hibernia Bank. The evidence is clear that Ferrara was in the right hand lane initially. His speed was somewhere between 10 and 20 miles per hour.

Picou was traveling in the same direction on Elysian Fields toward the University of New Orleans where he had a 9:40 a.m. class. He was traveling in the left hand lane at a speed of 33 to 35 miles per hour as he approached the Ferrara vehicle. Pi-cou asserts that when the front wheel of his motorcycle reached the front door of the Ferrara vehicle, Ferrara made a sharp left turn and collided with his motorcycle. Ferrara asserts he made a left turn on to New York Street from the left lane of Elysian Fields which he fully occupied prior to reaching the intersection and that Picou attempted to pass him on his left between the car and the neutral ground. Therein lies the factual dispute.

The test to be applied by an appellate court in reviewing a decision of the trial court has been set forth clearly and concisely in Canter v. Koehring Co., 283 So.2d 716 (La.1973) as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Id at 724.

When the trial court judgment is based on a jury verdict we are limited in our scope of review to the questions of whether there is evidence in the record which furnishes a reasonable factual basis for that verdict. Jackson v. Watson, 360 So.2d 582 (La.App. 4th Cir.1978). Since the evidence is conflicting in this case, a review of the pertinent testimony is necessary.

Picou testified that he was proceeding in a northerly direction on Elysian Fields Avenue at a speed of 35 miles per hour. At all times prior to the accident he was in the left hand lane. At approximately the intersection of Robert E. Lee Blvd. and Elysian Fields he saw a gold colored car (Ferrara’s vehicle) back out of the Hibernia Bank parking lot and into the right lane of Elysian Fields. Immediately thereafter, he noticed Ferrara signaling with his left blinker light, presumably to change lanes. Picou testified Ferrara was traveling no more than 10 miles per hour. When he got within 5 to 10 feet of the rear of Ferrara’s vehicle he (Picou) was trying to decide if Ferrara was going to come over in the left lane, as he had not made a move to do so at that point. Picou stated he engaged the clutch of his motorcycle, but kept coasting until the front wheel of his motorcycle was even with the front door of Ferrara’s vehicle. At this point he was approximately eight inches from the curb, and his speed had been reduced by about 2 to 3 miles per hour. Just prior to the impact he testified that he had eye to eye contact with Fer-rara, and that the subsequent collision happened within a split second. He testified:

“When we were side by side it happened so quick that we were right at the corner, because within a split second the car turned and me I was over to the curb, as far as I could go. I couldn’t avoid going nowhere else. It happened all within a short distance of ten feet of impact.”

Ferrara’s deposition was read to the jury, and his version of the accident is as follows. After transacting business at the Hibernia Bank he backed out of the parking lot into the right hand lane of traffic on Elysian Fields. He then looked through the rear view mirror, the side view mirror and through the rear of his car, and upon observing a clear path he put on his left turn signal and began moving into the left lane. Once in the left lane, he kept his blinker light on to indicate a left turn on New York Street. Upon reaching the intersection of New York Street he began to turn left and at that moment was struck by Picou. He stated he did not see Picou until the impact, and only heard his horn after the collision.

Mark Bihn, the only eye witness to the accident testified that he was traveling in the right lane of traffic on Elysian Fields behind the Ferrara vehicle prior to the collision. He testified that he observed Fer-rara look to his rear before changing to the left hand lane and that Ferrara had his left turn signal on the entire time he was making the change from the right to the left hand lane. It was his testimony that Fer-rara was in the left lane when he made the left turn on New York Street, and that the motorcycle was attempting to pass Ferrara between the curb and the car. He remembered thinking that the motorcycle would make it through the space between the curb and the car but when he saw Ferrara begin to turn he knew both vehicles would collide. Although his testimony differed somewhat from his previous deposition, he was positive at trial that Ferrara was totally in the left lane prior to his left turn. He testified:

“Q. Did you ever see Mr. Ferrara just prior to New York execute a left hand turn from the right lane?
A. No, Sir.
Q. Are you positive of that?
A. Yes, Sir, I am.”

Dr. Robert Ehrlich, an expert in accident reconstruction, testified on behalf of Fer-rara. Using measurements of the scene of the accident obtained by Picou’s own civil engineer, and the testimony of Picou, Fer-rara and Bihm, he calculated the time it would take Ferrara to turn left from the right lane to the point of impact. He then calculated the distance Picou would have traveled at his stated speed within that length of time. His conclusion was that in the time it would have taken Ferrara to turn left from the right hand lane, Picou would have traveled beyond the point of impact and the accident would not have occurred. On the other hand, the time it would take Ferrara to turn left from the left lane to the point of impact would place Picou at the actual point of impact.

He further testified that there was no physical evidence of metal to metal contact or rubber to metal contact. This caused him to conclude that the impact was a glancing blow of 10 to 20 degrees rather than a sharp collision at closer to a 90° angle. This finding reinforces his overall conclusion that Ferrara turned from the left lane rather than the right, thus negating Picou’s claim.

Furthermore, Dr. Ehrlich concluded that given the slow rate of speed of Ferrara and the fast rate of speed of Picou, he (Picou) closed a distance of as much as 1700 feet within seconds from the intersection of Robert E. Lee to the point of impact. Thus, when Ferrara looked to his rear before changing lanes, Picou was not in sight.

Larry C. Harry testified in rebuttal on behalf of Picou as an expert in traffic safety and engineering. A summary of his testimony is basically that Ferrara had three manuevers to execute. He first had to back out of the parking lot, second he had to change lanes, and third, he had to make a left hand turn. Harry’s opinion was that the distance from the Hibernia Bank to New York Street was not sufficient to safely perform those three man-uevers.

NEGLIGENCE OF THE PARTIES

The jury concluded that both Picou and Ferrara were negligent, but that Fer-rara had the last clear chance to avoid the accident. Based on the evidence in the record, and in particular the testimony we have summarized herein, we cannot say that the jury was manifestly erroneous in finding both parties negligent. There is ample evidence to support those factual conclusions. Canter v. Koehring Co., supra; Jackson v. Watson, supra. However we must disagree with their finding that the last clear chance doctrine applies.

The last clear chance doctrine is an exception to the general rule of law which prevents a plaintiff from recovering where he is found to be contributorily negligent. Under this doctrine a defendant is liable to the plaintiff despite plaintiffs own negligence. Miller v. Carter, 346 So.2d 748 (La.App. 1st Cir.1977). For this doctrine to apply three criteria must be satisfied:

1. It must be shown that plaintiff was in a position of peril of which he was unaware, or from which he was unable to extricate himself.
2. The defendant was in a position to discover plaintiffs peril.
3. At the time defendant discovers the peril or should have discovered the peril by the exercise of reasonable care, he could have avoided the accident.

Jackson v. Watson, supra; Gendusa v. Rabel, 212 So.2d 854 (La.App. 4th Cir. 1968); Lavigne v. Southern Farm Bureau, 125 So.2d 430 (La.App. 3rd Cir.1960).

The litigant relying on the doctrine of last clear chance has the burden of proving same by a preponderance of the evidence. Gendusa v. Rabel, supra. Thus, it was incumbent upon Picou to prove that the doctrine was applicable to his case. We are of the opinion he failed to prove that he was in a position of peril of which he was unaware, or from which he could not extricate himself.

Picou testified he saw Ferrara from a block away, saw his left turn signal on, and expected him to move into the left lane. He testified:

“Q. Now, when you saw the left blinker go on what did you think?
A. I was thinking the man was going to come over into the left lane.
Q. At that point, how far were you from the gold vehicle?
A. A block or so.”

After observing the left turn signal, and while debating in his mind what Ferrara was about to do, Picou rapidly approached the vehicle. He never applied his brakes and only reduced his speed by one or two miles per hour by engaging his clutch. He asserts that he did not take further precautions because he anticipated Ferrara was only going to change lanes, not turn left. Yet, he kept coming until he was practically even with the Ferrara vehicle knowing full well that Ferrara was signaling a man-uever that would put the auto in his (Pi-cou’s) path. We see no difference whether Picou anticipated a lane change or a left turn, he still knowingly placed himself in a position of peril. Furthermore, Picou failed to prove that Ferrara could have avoided that accident had he seen him. In fact, both parties testimony makes it clear that the collision occurred in a matter of seconds.

“It is too well established to require citation of authority that the doctrine of last clear chance is applied only in instances where the facts indicate the reasonable possibility of the avoidance of an accident, despite the contributory negligence of the other driver.” Clark v. Shannon, 120 So.2d 307, (La.App. 2nd Cir.1960), at 309.

For the above and foregoing reasons the judgment of the trial court is reversed. Appellee, Gary E. Picou is to pay all costs.

REVERSED.

REDMANN, C.J., and SCHOTT, J„ dissent with reasons.

SCHOTT, Judge,

with whom RED-MANN, Chief Judge, joins, dissenting:

I cannot agree with the majority that the jury was clearly wrong in concluding that Mr. Ferrara had the last clear chance to avoid this accident.

There was evidence of record for the jury to find that Ferrara was slowly moving from the right lane to the left as Picou was passing him and that he never saw or heard Picou even though they ended up side by side. At this point Picou could do nothing but proceed past Ferrara but Fer-rara suddenly turned into Picou. Had Fer-rara seen Picou he surely would not have been authorized to run over him but he would have been obliged to straighten his car, or perhaps stop, but to let Picou go by in any event. Ferrara was going only ten miles per hour at this time. One piece of evidence supporting this scenario is the testimony of the disinterested witness who was following Picou and Ferrara from a short distance away. At his deposition this witness described the accident as follows:

“The motorcycle (Picou) was braking. The gentleman in the car (Ferrara) was making a left-hand turn. He had not made the turn yet, excuse me. He gave — from all indications, he was just going straight on, and I thought he might make it; he might pass the man between the curb and the car, but at the last moment the man started to turn, and that’s when his motorcycle hit just right on the very edge of the bumper.” (Vol. 5, page 78.)

This version of the facts provides for the application of constructive last clear chance as in Jackson v. Cook, 189 La. 860, 181 So. 195 (1938). Although Picou was negligent, since Ferrara should have seen him and had the last chance to avoid the accident had he seen him, Picou is entitled to recover.

      . At the time this accident occurred the contributory negligence doctrine was the applicable law.


author: LOBRANO, Judge.

text:
    ANGELO PAVONE ENTERPRISES, INC., Angelo J. Pavone, Jr. and Barbara A. Pavone v. SOUTH CENTRAL BELL TELEPHONE COMPANY and American Telephone and Telegraph.
    No. CA-1959.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Writ Granted Jan. 14, 1985.

      Raymond C. Burkart, Jr., New Orleans, for plaintiffs/appellees.
    Warren M. Schultz, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendant/appellant.
    Before CIACCIO, LOBRANO and ARMSTRONG, JJ.
   LOBRANO, Judge.

South Central Bell (appellant) seeks reversal of a judgment of the lower court which found it negligent in the maintenance and operation of the phone service provided Angelo Pavone Enterprises, Inc., Angelo J. Pavone, Jr. and Barbara A. Pa-vone (referred to collectively as Pavone). The trial court awarded Pavone $25,000.00 in damages for alleged lost profits and expansion expenses. The issues dispositive of this appeal are: (1) the applicability of the tariffs filed with the Louisiana Public Service Commission which purport to regulate appellant, and (2) the liability of defendant if it failed to comply with the tariff.

Pavone has been in the haircutting business since the early 1970’s. In 1978 they moved their business to larger quarters. This required a change in telephone service which occurred in April of 1978. The service at the new location consisted of two telephones with two separate numbers which were not on a rotary system.

In June of 1980 the Pavones and appellants settled a lawsuit which was the result of alleged faulty service. From June of 1980 thru November of 1980 no complaints of faulty phone service were made by the Pavones. However on November 7, 1980 renewed dissatisfaction with the phone service emerged which ultimately resulted in the instant suit. The complaint registered by Barbara Pavone on that date was the first of fourteen complaints made by the Pavones thru April 17, 1981. Appellant’s records indicate there were eleven although they only go back to January of 1981.

The trial court limited the damages to the period November 1980 thru April 17, 1981 because of the tariff in effect during that period. Although Pavone argues to the contrary, we agree that the trial court was correct in holding that appellant’s responsibility for damages after April 17, 1981 is limited to willful misconduct, which was not proven. However, we disagree with his finding that appellant was negligent prior to that date.

The relevant tariff in effect for the period prior to April 17, 1981, is Section A2.5.1. It provided:

“The liability of the Company for damages arising out of mistakes, omissions, interruptions, delays, errors or defects in transmission, or failures or defects in facilities furnished by the Company, occurring in the course of furnishing service or other facilities and not caused by the negligence of the subscriber, or of the Company in failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision shall in no event exceed an amount equivalent to the proportionate charge to the subscriber for the period of service during which such mistake, omission, interruption, delay, error or defect in transmission or defect or failure in facilities occurs.”

We have no hesitancy in holding that the liability of appellant is governed by the provisions of the above quoted tariff. Appellant is a public utility and is subject to the jurisdiction of the Public Service Commission pursuant to Article 4, Section 21 of the La. Constitution. As such, the Commission is authorized to “... adopt and enforce reasonable rules, regulations and procedures necessary for the discharge of its duties...” La. Const. of 1974 Art. 4, Sec. 21(B). In Peacocks, Inc. v. South Central Bell, 455 So.2d 694 (La.App. 2nd Cir.1984) our brethren of the Second Circuit affirmed the dismissal of South Central Bell on a motion for summary judgment holding that the provisions of the private line tariff limited their liability to responsibility for willful misconduct. The reasoning of the Court in that decision is equally applicable to the case at bar. The Court stated:

“The general public as a whole would bear the burden if unlimited liability is placed upon a public utility for every service it provides to the individual.... We therefore cannot say that a limitation of that liability is unreasonable nor that it violates public policy.” Peacocks, supra, p. 698.

See also, Crowley Industrial Bag Co. v. Western Union Co., 204 So.2d 725 (La.App. 3rd Cir.1967), writ refused, 251 La. 859, 206 So.2d 711 (1968) where the tariff filed by Western Union with the Federal Communications Commission was applied to limit their liability. See also, Roll-Up Shutters, Inc. v. South Central Bell, 394 So.2d 796 (La.App. 4th Cir.1981), writ denied 399 So.2d 599 (La.1981).

Having concluded that the tariff is applicable, we now turn to the correctness of the lower court’s findings. In his reasons for judgment, the trial court stated:

“For reasons we’ll probably never know, plaintiff’s phone service for the period in question was wholly inadequate. Though it tried, South Central Bell’s efforts to cure must have been inadequate. They are in sole control of the entire system and I cannot believe the problem was indiscoverable or incurable. The conclusion is inescapable that defendant failed to maintain proper standards and operation and failed to exercise reasonable supervision, and is therefore liable.”

This Court is of the opinion that the trial court was in error in his application of a strict liability theory to the facts of this case. Clearly the tariff provides for the liability of appellant “... in failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision. ..” The mere proof of faulty phone service is not sufficient.

Liability cannot be imposed without a finding of fault. Under general liability principles fault is a breach of a duty imposed by law or contract. Tripkovich v. Gilbert Engineering Corp., 439 So.2d 1172 (La.App. 4th Cir.1983) Civil Code Articles 2315 thru 2324 provide the various legal duties the breach of which may give rise to fault. Although Loescher v. Parr, 324 So.2d 441 (La.1975) and the subsequent myriad of Article 2317 cases hold a person at fault, and thus responsible for those things “... which we have in our control,” we are of the opinion that this court cannot apply those principles to the instant case. This ease must be governed by the legal duty imposed upon appellant by the above quoted tariff, and Pavone bears the burden of proving that same was breached. We hold that he did not bear that burden.

A review of the evidence substantiates Pavone’s claim of intermittent faulty service from November of 1980 thru April 17, 1981. The Pavones’ testimony, as well as that of former customers and employees, makes it clear that at times the phone would not ring in the shop, or that the party calling would get a recording stating the phone was out of order, or that it would ring at another location. However the record is void of any positive proof that appellant breached its legal duty as set out by the tariff. To the contrary, Pavone admitted that the phone company responded to their various complaints. They argue, however, that because they were unsuccessful in curing the faulty service, they should be liable. We disagree.

Appellant’s evidence consisted principally of the testimony of Todd Horton, the dispatch supervisor in the Downtown Mid-City Maintenance Bureau. He had previously served in the capacity of Test Desk Supervisor and was personally familiar with the Pavones’ complaints. He first explained in general the methods used by appellant in responding to customer complaints, and then in particular what was done in regards to each and every complaint of Pa-vone. He testified that due to the nature and frequency of their complaints their case was assigned to a special bureau known as the “Care Bureau” which was designed to give preferential treatment to especially dissatisfied customers. Without going into painstaking detail as to what tests and/or work was performed with respect to each specific complaint lodged by the Pavones, suffice it to state that wires were replaced, cable pairs were changed, telephones were replaced, the switching mechanisms were examined, and wires were replaced. Appellant’s response to each and every complaint resulted in the phones again being in working order after their service call.

It is elementary in a negligence action that negligence is not presumed, but that it must be proved by the party alleging it. Starks v. Kelly, 435 So.2d 552 (La.App. 1st Cir.1983). Determinations of negligence must be based on the evidence, and the trier of. fact may not indulge in mere possibilities. Brown v. Rudy Smith Service, Inc., 441 So.2d 409 (La.App. 4th Cir.1983). So, too, in the instant case, the court cannot assume that appellant breached the duty owed simply because the phones didn’t work at times.

There is adequate evidence in the record to support an interruption of phone service for 15 days prior to April 17, 1981, and 24 days subsequent thereto. The average monthly service between November of 1980 and April of 1981 was $73.02 per month or $2.43 per day. According to the tariffs, Pavone is entitled to $99.77 for interruption of service.

Accordingly, the judgment in favor of Pavone is hereby reversed in so far as it holds appellant negligently liable for $25,-000.00 in damages, plus interest, but amended so as to award Pavone the sum of $99.77, plus interest and all costs.

REVERSED IN PART, AMENDED IN PART, AND AS AMENDED AFFIRMED.

      . The tariff in effect after April 17, 1981 provides:
      "The Company’s liability, if any, for its wilful misconduct is not limited by this tariff. With respect to any other claim or suit, by a customer or by any others, for damages associated with the installation, provision, termination, maintenance, repair, or restoration of service, the Company’s liability, if any, shall not exceed an amount equal to the proportionate part of the monthly recurring charge for the service for the period during which the service was affected. This liability shall be in addition to any amounts that may otherwise be due the customer under this tariff as an allowance for interruptions."