author: SHORTESS, Judge.

text:
    STATE of Louisiana v. Linda HOWARD.
    No. 83 KA 0866.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied May 4, 1984.

      Ossie B. Brown, Dist. Atty. by Richard Chaffin, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    M. Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

On April 9, 1981, Linda Howard (defendant) was arrested and charged with three counts of a violation of La.R.S. 40:967(A) for possession with intent to distribute controlled dangerous substances as enumerated in Schedule II of La.R.S. 40:964. Defendant pled not guilty. After two mistrials and during jury selection of the third trial, defendant changed her plea and pled guilty to all counts, including Count III, intent to distribute over 400 grams of cocaine.

Subsequently, the guilty plea to Count III was modified by court order after evidence revealed that 400 grams of cocaine was not involved. The charge was reduced to possession with intent to distribute more than 200 but less than 400 grams. Defendant pled guilty to the lesser charge. As to Count III, the trial court sentenced defendant to serve a minimum of ten years at hard labor with the Department'of Corrections, to be served without benefit of probation or parole with credit for time served. On Count I, the trial court sentenced defendant to serve ten years, with the Department of Corrections,, to run concurrently with Count III.- As to Count II, the trial court sentenced defendant to serve ten years at hard labor, to run concurrently with Count III. The' trial court also sentenced defendant to serve six months for several counts of contempt of court, to run concurrently with the aforesaid drug sentences. Defendant now appeals her convictions and sentences. She has argued and briefed four assignments of error.

FACTS

The East Baton Rouge Parish Sheriffs Office was conducting an undercover investigation of John and Linda Howard’s home located at 6408 Teah Drive, Baton Rouge, in April of 1981. Carl Hill, defendant’s brother, was staying at.the home.. Defend ant’s son by a prior marriage, Mark Taylor, also resided there. On April' 9, 1981, Deputy Mary Kuntz was at defendant’s residence in the company of Taylor. While there, she simulated smoking a marijuana cigarette which had been given to her by Taylor. She also observed additional marijuana in the house and obtained a sample which was identified positively as marijuana. Deputy Kuntz observed Taylor place a quantity of marijuana, which she estimated to be about one ounce, in a box which he placed in a chest of drawers in his bedroom. While at the house, Kuntz was told by Taylor that a shipment of drugs was to arrive later that day. After she left defendant’s residence, Kuntz and her supervisor, Capt. Mike Barnett, swore out an affidavit which was used to obtain a search warrant. The deputies waited approximately seven hours after receiving the warrant to execute it, and they did so at a time when they were certain that defendant had returned home. When the warrant was executed, the deputies found, marijuana, cocaine, Quaaludes and several guns.

ASSIGNMENT OF ERROR NUMBER 1— Denial of motion to suppress

In her first assignment of error, defendant alleges that the trial court erred in denying her motion to suppress evidence which was seized pursuant to the alleged invalid search warrant. Defendant argues that the affiants deliberately withheld certain information which in all probability would have caused the court to refuse to issue a warrant. Defendant further contends that the search warrant was merely a subterfuge to allow the deputies to search defendant’s residence based on a mere suspicion that quantities of drugs were present, when they knew that the drugs were not present at the time the warrant was issued.

In State v. Patterson, 422 So.2d 1131, 1134 (La.1982), the Louisiana Supreme Court enunciated the general principles that govern this issue as follows:

Constitutional provisions insure a person from unreasonable search and seizure' of his house, papers and effects. No such search or seizure shall be made except upon warrant issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. U.S. Const.Amend. IV; La. Const, art. 1, § 5. Conformably, our Code of Criminal Procedure in art. 162 provides in pertinent part:
A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.
We have held that probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. State v. Mena, 399 So.2d 149 (La.1981). However, if unintentional misstatements are made by the affiants seeking to obtain a search warrant, these misstatements must be excised and the remainder used to determine whether or not the affidavit sets forth probable cause for issuance of a warrant. State v. Rey, 351 So.2d 489 (La.1977). Similarly, when the affiant omits material facts without an intent to deceive, the reviewing court must add the omitted facts to those originally included in the affidavit and re-test the sufficiency of the showing of probable cause. State v. Lehnen, 403 So.2d 683 (La.1981).

Barnett and Kuntz presented an affidavit in support-of their request for the search warrant to authorize a search for a quantity of a controlled, dangerous substance, to-wit, marijuana. Specifically, the affidavit stated that:

Affiants inform the Court that on this date, April 9, 1981, Deputy Mary Kuntz while working in an undercover capacity was present at the above location and along with one of the occupants, Mark Taylor, simulated smoking a Marijuana cigarette. Deputy Kuntz also observed other Marijuana present at the residence and was able to secure a sample. Said sample was identified by Deputy Kuntz and Captain Barnett as Marijuana.
Affiants further inform the Court that information has been received over the past six months from other reliable and confidential informants, as well as other police officers who had been inside the above residence, that 6408 Teah Drive, is being used as a place from which Quaa-ludes, Marijuana and Cocaine are distributed.

The warrant was issued at approximately 4:00 p.m. on April 9, 1981. The warrant was executed at approximately 11:00 p.m. that night, and' the following drugs and contraband were found:

1) Approximately fifty (50) pounds of suspected Marijuana.
2) Approximately one (1) pound of suspected Cocaine.
3) 35,000 suspected Methaqualone tablets (Quaaludes).
4) Smith & Wesson revolver, model 36, serial #J757740 with 2 fired Cartridge and 3 live rounds.
5) Charter Arms Undercover revolver serial # 635754 with 4 live rounds and 1 fired.
6) Sawed off double barrel shotgun serial # B0772 with 2 rounds of # 4 buck.

Defendant argues that the warrant was defective because it was issued without probable cause and the reliability of the informants was not established as required.

In State v. Brannon, 414 So.2d 335, 337 (La.1982), the Supreme Court stated:

An affidavit supporting a search warrant is presumed to be valid. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

In State v. Duncan, 420 So.2d 1105, 1108 (ia.1982), the Supreme Court enunciated the general principle that:

An allegation of past reliability is not necessarily a sine qua non to sufficiency of probable cause as long as a common sense reading of the affidavit supports the conclusion that the informant is credible and his information is reliable. State v. Clay, 408 So.2d 1295 (La.1982).

The affiants were not confidential informants but law enforcement officers. The recitation in the first paragraph of the affidavit was Kuntz’ personal observation.

Defendant also attacks the affidavit for its failure to state the quantity of marijuana that was present. She cites State v. Boneventure, 374 So.2d 1238 (La.1979), as authority for the proposition that a reason or belief that contraband or evidence will not be disposed of but will remain at the place to be searched at the time of the proposed search as a necessary element which must be included within the general concept of probable cause.

The Boneventure, 374 So.2d at 1239-1240, rationale is inapposite to the facts here. In Boneventure, the entire quantity of marijuana was offered for immediate consumption. Here, Deputy Kuntz and Taylor consumed one or two marijuana cigarettes, but Kuntz saw Taylor place ap-. proximately one ounce of marijuana in his chest of drawers. Her statement that she “observed other marijuana in the house” was a valid one.

The deputies candidly admitted that they waited until they knew that defendant’s car had returned and was in the driveway before they executed the warrant because they had a dual purpose. They wanted to seize the marijuana that Kuntz had observed and facilitate the seizure of any incoming contraband that might be present. While Taylor had told Kuntz that more drugs were arriving some time that day, Kuntz and Barnett did not use that information to obtain the warrant. Although we would have preferred to have had this additional disclosure, we note that defendant has shown no prejudice because of the failure to communicate the omitted information. We find that probable cause existed without the omitted facts but had it been tendered it would have bolstered and substantiated the trial court’s probable cause determination. Our finding is based upon our construction of the affidavit in a common sense and nontechnical manner. State v. Lehnen, 403 So.2d 683 (La.1981). Defendant failed to produce any evidence to show that the omissions were willful and calculated to conceal information that would indicate that there was not probable cause or that the source of other factual information was tainted. Accordingly, the omission would not change the good warrant into a bad one. State v. Roubique, 421 So.2d 859 (La.1982).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 2— Denial of motion to enforce plea bargain agreement

Defendant alleges that the trial court erred when it denied her motion to enforce a plea bargain agreement which she entered into with Capt. Mike Barnett of the East Baton Rouge Sheriff’s Office. The State denies the existence of any agreement between it and defendant and further contends that defendant knew that the District Attorney’s office would not engage in any plea bargain agreements. The facts indicate that defendant, independent of her counsel, initially approached Capt. Barnett seeking favorable consideration in return for information about drug dealers. Specifically, she sought a maximum ten-year exposure on her drug charges and favorable consideration for her husband and brother. Barnett was very interested and indicated to her that something could be worked out if she were to actually assist him in making cases against dealers as big or bigger than she was.

Defendant kept her end of the bargain. As a result of her assistance, several big drug arrests were made. Even the State concedes that defendant did provide some assistance, to the Sheriff’s Office. Notwithstanding this aid, Barnett was unable to obtain the D.A.'s concurrence in the arrangement he made. In fact, the D.A.’s office throughout these proceedings stoutly maintained that it made no deal and would make no deal. Apparently, the reason for this strong position was because defendant never supplied the name of her Baton Rouge cash connection or the name of her Florida drug source. The Louisiana Supreme Court in State v. Tanner, 425 So.2d 760, 762 (La.1983), said that “[t]he district attorney determines whom, when and how he shall prosecute in his district.” La.C.Cr.P. art. 61. See also La. Const. of 1974, art. V, § 26(B).

In addition, the Legislative mandate as set forth in La.C.Cr.P. art. 558 provides:

The defendant, with the consent of the district attorney, may plead guilty of a lesser offense that is included in the offense charged in the indictment.

The district attorney is the only official vested in law to engage in plea bargains. In this case, he refused to do so. It was his prerogative and his alone, and this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 3— sentencing procedure

Defendant maintains that the trial judge erred when he denied her motion to close the sentencing hearing so she could testify regarding her assistance to the Sheriff’s Office in an attempt to obtain a reduced sentence under La.R.S. 40:967(G)(2). Defendant sought a closed hearing because she said that the information, if made public, could result in physical harm to her.

Defendant has failed to show prejudice as a result of the court’s denial of her motion. Our review of the record indicates that evidence was in fact presented regarding her assistance and that the trial judge noted this fact when he imposed sentence. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 7 :—excessive sentence

Defendant contends that her sentence was excessive because the trial judge did not reduce it as provided for in La.R.S. 40:967(G)(2). Of course, wide discretion is given the trial judge in the imposition of a sentence within the applicable statutory limits. In the absence of manifest abuse, his sentence will not be set aside as excessive. State v. Wroten, 433 So.2d 249 (La. App. 1st Cir.1983).

Here, the trial court specifically noted the defendant’s assistance to the Sheriff’s Office and said that this was a consideration in imposing the minimum mandatory sentence. The three sentences imposed were to run concurrently. We have considered the trial judge’s reasons, and the sentences imposed were not an abuse of his discretion. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, defendant’s convictions and sentences are affirmed.

AFFIRMED.

      . The evidence at the trial of defendant’s co-defendants, i.c., her husband, John Howard, and her brother, Carl Hall, showed that a quantita-live evaluation made by the Louisiana State Police Crime Lab found less than 400 grams of cocaine was seized from defendant’s house.

      . La.R.S. 40:967(G)(2) provides that a defendant may qualify for reduction or suspension of a sentence when he provides substantial assistance in the identification, arrest or conviction of other parties or conspirators to the crime for which he was convicted or to related crimes.

      . Eight errors were originally assigned. Only four were argued and briefed. The others are considered abandoned under Rule 2-12.4 of the Uniform Rules of the Court of Appeal. State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983), writ denied, 437 So.2d 1141 (La.1983).

      .In addition, the trial court may reduce or suspend a sentence in compliance with La.R.S. 40:967(G)(2) on its motion. State v. LeCompte, 406 So.2d 1300 (La.1981).


source: Caselaw Access Project

author: BOWES, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Lance OLIVER.
    No. 83-KA-636.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      Paul Connick, William C. Credo, III, Asst. Dist. Attys., Gretna, for plaintiff/ap-pellee.
    Joseph Montgomery, Staff Appeals Counsel, 24th Judicial Dist. Indigent Defender Bd., Gretna, for defendant/appellant.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   BOWES, Judge.

Defendant, Lance Oliver, appeals his conviction and sentence on the charge of possession of a controlled dangerous substance [LSA R.S. 40:967(C)]. We affirm both the conviction and the sentence.

The defendant, Lance Oliver, along with a co-defendant, Ron McCord, was charged by Bill of Information with one count of possession of amphetamines and one count of possession of cocaine, both violations of LSA-R.S. 40:967(C). Pursuant to negotiations with the State, the Bill of Information was amended to a charge of one count of possession of pentazocine. The defendant entered a plea of guilty to this charge reserving his right to seék appellate review of the trial court’s denial of his Motion to Suppress,’ pursuant to State v, Crosby, 338 So.2d 584 (La.1976). Consistent with the plea bargain, agreement, the defendant, Oliver, was sentenced to serve one year in the Jefferson Parish Correctional Center. Execution of this sentence was suspended and Oliver was placed on active probation for a term of one year. As a special condition of probation, he was ordered to pay a fine of $1,000.00 and court costs in the amount of $110.00 on or before August il> Í983.

About 4:10 p.m., on the afternoon of August. 24, 1982, two officers from the Gretna Police Department were dispatched to 325 Weyer Street, Gretna, La., in response to a citizen’s call concerning a drug violation in progress. .

As the first officer, ’ Patricia Rome, arrived at the location, she was met in the parking lot of the small apartment complex by an unidentified- complainant who informed Officer Rome that two men were in a camper “shooting up ... right now” (R. p. 43) and directed her to a camper mounted on the back of a pick-up truck. As Officer Rome was conducting her brief interview with the complainant, Officer Henry Levenson arrived on the scene. Together they approached the- camper and knocked on the door. Lance Oliver responded to the knock and stepped out onto the tailgate, leaving the door wide open behind him. Both officers glanced inside the camper and observed the co-defendant with a handful of syringes, trying to place them under the seat. Two additional syringes were-on the table in front of him, along with a coffee cup containing a substance later identified as a controlled dangerous substance. The officers then entered the camper, seized the syringes and cup, and arrested the subjects.

At the hearing on the Motion to Suppress, the defendant asserted that he had exited the camper beforé he was arrested and it was only after detaining him that the officers entered and searched the camper for contraband.

The defendant now appeals, arguing a single assignment of error. A second assignment was not argued in appellant’s brief and is, therefore, considered abandoned.

ASSIGNMENT OF ERROR NUMBER 1

The trial judge committed reversible error in failing to grant defendant’s motion to suppress, which failure violated C.Cr.P. art. 703 and Article 1, Section 5 of the Louisiana Constitution.

Two versions of the defendant’s arrest and the seizure of the controlled substance were presented at the suppression hearing. From the articulated reasons of the trial court in denying the defense motion, it is apparent that the trial judge found the narrative of the police officers on the scene more deserving of belief than that of the defendant.

“In reviewing the trial judges’ ruling ... his conclusion on credibility are entitled to the respect due those made by one who saw the witnesses and heard them testify.” State v. Rodrigue, 409 So.2d 556, 561 (La. 1982).

We fully agree with the astute trial judge. The version of the officers is consistent, logical and believable. The version of the defendant requires one to believe that he was wearing long sleeves in August and that he had, while sleeping, received ant bites “all over my arms, legs, any skin that is exposed when you are sleeping”, and that scratching these bites, and not a syringe’s needle, caused the blood on his arms. We find this story incredulous.

The appellant asserts in his brief (p. 2) that

[E]ven if the officers [sic] version of what occurred is accepted as true, there is a serious problem in that the officers were acting purely and simply upon the “tip” of the alleged informant, whom neither officer was really able to identify and who apparently had never actually furnished information to the Police Department in Gretna before. There is' no question but that the "tip” of this informant would have been insufficient if the officers had attempted to use it as a basis for a search warrant.

At the suppression hearing, Officer Patricia Rome conceded that, at the time she knocked on the door of the camper, she had no probable cause to either arrest the occupants or search the “vehicle”.

The testimony of both officers established that their only purpose for approaching the premises was to further investigate the complaint of the unidentified citizen-informant who had advised them that she had seen the occupants of the camper “shooting up.”

The plain view rule is set forth in State v. Brown, 370 So.2d 525, 527 (La. 1979) as follows: “[w]hen an officer inadvertently observes evidence of a crime from a vantage point that does not intrude upon a protected area or when that protected area is entered with prior justification, there is no violation of the search warrant rule' because there has been no ‘search.’ ” [citations omitted]

The question posed by the defense is whether the officers were justified in knocking on the door to the defendant’s camper so as “to be where they had a right to be” when the controlled dangerous substance was observed, thereby falling within the parameters of the plain view doctrine to legitimate the subsequent seizure.

The defense asserts that “probable cause” is necessary to justify an officer’s knock at the door of a residence. Further, counsel argues that the uncorroborated tip of an unidentified, unproven, informant cannot constitute “probable cause” to violate the defendant’s right to privacy.

While we agree that the informant’s “tip” did not establish probable cause to justify a search, we find such probable cause is not required to knock at the door of a residence. In State v. Sanders, 374 So.2d 1186 (La.1979), the court held:

Knocking at the door violated no right of privacy; that single action by the police did not infringe on defendant’s “right to be let alone.” It is an almost implicit understanding and custom in this country that, in the absence of signs or warning, a residence may be approached and the occupants summoned to the door by knocking.
Defendant was free to refuse to open the door or to slam it shut once opened. His freedom of movement was never infringed upon and no search or seizure occurred except on the basis of defendant’s voluntary actions.

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), a plurality of the U.S. Supreme Court agreed the “plain view” doctrine permits the war-rantless seizure by police of private possessions where three requirements are satisfied:

(1) The police officer must lawfully make an initial intrusion or otherwise be properly in a position from which he can view a particular area.
(2) The officer must discover incriminating evidence inadvertently, which is to say he may not know in advance the location of certain evidence and intend to seize it, relying on the plain view doctrine only as a pretext.
(3) It must be “immediately apparent” that the items so observed may be evidence of a crime, contraband or otherwise subject to seizure.

The Supreme Court observed recently in Texas v. Brown, — U.S. -, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502 (1983) that “[w]hile lower courts generally have applied the Coolidge plurality’s discussion of “plain view”, it has never been expressly adopted by a majority of this Court.” The court then held “[w]hile not a binding precedent, as the considered opinion of four Members of this Court, it should obviously be the point of reference for further discussion of the issue.” Accordingly, since Coolidge has never been overruled or challenged by another U.S. Supreme Court decision, it is, in our view, the foremost authority to follow at the present time, particularly in the light of the foregoing language in Texas v. Brown.

Considering the applicable caselaw, we are of the opinion there is no dispute as to the presence of the first of the three requirements of the Coolidge case to invoke the “plain view” doctrine. Since the police officers had the same right to knock on the appellant’s door as any other member of the, general public, their vantage point was lawfully obtained.

Likewise, the second requirement of Coolidge, supra, was fulfilled. Clearly, the officers were unaware of the existence or the location of the contraband within the camper. Additionally, while the informant’s tip may have given the officers a generalized expectation that narcotics would be in the camper, they could not have guessed that the occupants of the camper would disclose the contraband to full view in response to a knock at the door.

Regarding the third requirement of Coolidge, appellant urges further that the white substance in the cup was not readily identifiable as contraband so as to be subject to seizure. While the Louisiana Supreme Court has strictly interpreted this requirement (see State v. Pomes, 376 So.2d 133 (La.1979); State v. Meichel, 290 So.2d 878 [La.1974]), the U.S. Supreme Court declared the Coolidge phrase “immediately apparent” an “unhappy choice of words.” Texas v. Brown, supra, 103 S.Ct. 1535, 1542 and adopted the application of the rule enunciated in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) to define the items subject to seizure under the plain view doctrine. There, the court held “the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with cniminal activity.” [emphasis added]. Payton, supra, 445 U.S. 587, 100 S.Ct. at 1380.

Defining probable cause, the court in Texas v. Brown, supra, — U.S. -, 103 S.Ct. at 1543 held:

As the Court frequently has remarked, probable cause is a flexible, commonsense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed.2d 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). Moreover, our observation in United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), regarding “particularized suspicion,” is equally applicable to the probable cause requirement:
“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated-as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”

Taking into account these considerations, and the officers’ inadvertent view of the syringes inside the camper, we find that the officers possessed probable cause to believe that the unidentified white substance in the coffee cup on the table contained contraband and thus satisfied the third requirement of Coolidge.

We also find that the intrusion into the camper, preceding the seizure of the legitimately-observed contraband, was justified for the following reasons.

In State v. Melton, 412 So.2d 1065, 1967 (La.1982), the Louisiana Supreme Court, citing Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) as authority, held “[a] law enforcement officer, who has a right to be where he is may seize evidence inadvertently observed, [citations omitted].”

The Supreme Court in Texas v. Brown, supra, 103 S.Ct. at 1540, clarified the issue by stating:

The question whether property in plain view of the police may be seized ... must turn on the legality of the intrusion that enables them to perceive and physically seize the property in question.... We recognized ... the well-settled rule that “objects such as weapons or contraband found in a public place may be seized by the police without a warrant. The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity.” A different situation is presented, however, when the property in open view is “situated on private premises to which access is not otherwise available for the seizing officer.” Id., at 587, 100 S.Ct., at 1380, quoting G.M. Leasing Corp. v. United States, 429 U.S. 338, 354, 97 S.Ct. 619, 629, 50 L.Ed.2d 530 (1977). As these eases indicate, “plain view” provides grounds for seizure of an item when an officer’s access to an object has some prior justification under the Fourth Amendment.

By footnote, the court explained:

It is important to distinguish “plain view," as used in Coolidge to justify seizure of an object, from an officer’s mere observation of an item left in plain view. Whereas the latter generally involves no Fourth Amendment search, see pp. 1541-1542, infra; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the former generally does implicate the Amendment’s limitations upon seizures of personal property. The information obtained as a result of observation of an object in plain sight may be the basis for probable cause or reasonable suspicion of illegal activity. In turn, these levels of suspicion may, in some cases, see, e.g., Terry v. Ohio [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 889] supra; United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), justify police conduct affording them access to a particular item.

Texas v. Brown, supra, 103 S.Ct. at 1541, n. 4.

Accordingly, we must determine if the intrusion into the camper and the subsequent seizure of the controlled substance was justified by any of the true “exceptions” to the warrant clause of the Fourth Amendment.

In order to make such a determination, a preliminary decision must be reached as to whether the camper constituted a “vehicle” or a “residence”.

From the testimony at the suppression hearing, it was established that while the camper had windows, a door to the outside, and at least a table and sink within, it was not equipped with personal hygiene facilities. The defendant asserted that he was living in the camper in the parking lot of the apartment complex because he had the use of bathroom facilities located therein at the time of his arrest. The deputy stated that “it [the camper] was on top of the pickup.” (R. p. 46).

We find that a pickup truck, no matter what additions have been made to it, should be treated as a vehicle and the seizure by the officers justified by the “automobile exception” to the warrant clause. The controlling principles of that doctrine provide that officers are empowered to search a vehicle when two conditions are met, namely (1) there must be probable cause to believe that the vehicle contains contraband or evidence of a crime, and (2) there must be exigent circumstances requiring an immediate search. State v. Chaney, 423 So.2d 1092 (La. 1982).

The plain view of the contraband afforded the deputies when the defendant opened the door of the camper constituted sufficient probable cause to justify the subsequent intrusion into the camper. Likewise, exigent circumstances existed, which justified the warrantless seizure of the contraband.

“Exigent circumstances” have been defined as:

(1) [T]he impracticability of obtaining a warrant due to the possibility that the car could be moved either by its occupants, if not arrested, or by someone else. An immediate warrantless search is, therefore, constitutionally permissible when “the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained, [citation omitted]

State v. Guzman, 362 So.2d 744, 748 (La. 1978), and State v. Chaney, supra at 1097; and

(2) Examples of exigent circumstances have been found to be escape of the defendant, avoidance of a possible violent confrontation that could cause injury to the officers and the public, and the destruction of the evidence, [emphasis added] [citations omitted]

State v. Hathaway, 411 So.2d 1074, 1079 (La. 1982).

At the suppression hearing, Officer Rome testified, “[w]hen the door opened Mr. McCord attempted to hide the evidence from us. There is also directly within arm’s reach a sink in the camper. At that time I felt I had no choice but to go inside of the camper.” (R. p. 48).

Because there was a legitimate concern that the evidence observed would be destroyed if any delay was incurred, the immediate entry into the vehicle to curtail such destruction was authorized. Because the entry was justified, the ultimate, war-rantless, seizure of the items was also proper.

Accordingly, the conviction and the sentence of the defendant are affirmed.

AFFIRMED.


author: CURRAULT, Judge.

text:
    Mrs. Elizabeth Ann Daigrepont Burmaster, widow of Elvin E. BURMASTER, Jr., Individually and as Natural Tutrix of her Minor Children, Annelle Marie Burmaster, Velvet Ann Burmaster and Darrin Joseph Burmaster v. GRAVITY DRAINAGE DISTRICT NO. 2 OF the PARISH OF ST. CHARLES, St. Charles Parish Police Jury, ABC Insurance Company, Fromherz Engineers, Inc., DEF Insurance Company, Reise (Riess) Construction Company, and XYZ Insurance Company.
    No. 83-CA-651.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Robert J. David, Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for plaintiffs-appellees.

      Steven F. Griffith, Sr., Steven F. Griffith, Sr., Ltd., Destrehan, for defendants-appellants.
    Before CHEHARDY, CURRAULT and GAUDIN, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Ninth Judicial District Court wherein the Honorable C. William Bradley rendered judgment in favor of plaintiffs and against defendant for the full sum of Seven Hundred Two Thousand, Five Hundred Seventy-One Dollars ($702,571) plus interest and costs. Defendant now appeals.

In 1961, the Gravity Drainage District No. 2 of the Parish of St. Charles contracted and had built a pumping station that would discharge the runoff of rain or water from other sources in the town of Norco from the East Drainage Canal into a small bayou which empties into Lake Pontchartrain. Safety railing was installed at this station shortly after its completion to provide protection in the area where employ-’' ees and maintenance personnel would be working.

In April of 1977, the Board of Commissioners contacted Reagan Equipment Company to repair a clutch on the drive shaft that operated an engine at the Norco Pumping Station. On April 23, 1977, Elvin E. Burmaster and Eddie Joseph Ayo, employees of Reagan Equipment Company, were dispatched by Reagan to effect the necessary repairs at the Norco Pumping Station.

After arriving at the work site, Burmas-ter and Ayo determined that the clutch would have to be brought to Reagan’s Equipment Shop to be “broken down” and repaired. This necessitated the removal of the engine shaft which was eleven feet, three inches long and weighed approximately two hundred and ninety-five pounds. While in the process of carrying it, Mr. Burmaster encountered an angle brace on a concrete walkway causing him to trip and fall into an open unguarded drainage pit where he drowned.

Suit was filed on behalf of the widow and heirs against several defendants. However, all defendants were dismissed with the exception of the Gravity Drainage District No.- 2 of the Parish of St. Charles. After a trial on the merits, judgment was rendered June 7, 1983 in favor of plaintiffs and against defendant in the full sum of Seven Hundred Two Thousand, Five Hundred Seventy-One Dollars ($702,571), together with legal interest from date of judicial demand and all costs.

Appellant, Gravity Drainage District No. 2, although failing to appear for oral argument, asserts by brief the following specifications of error:

. that (1) the trial court erred that the employee railed area was unreasonably hazardous to those working in the area; and that

(2) the trial court erred in failing to assess “victim fault” or contributory' negligence under the facts of this case.-

In finding that the employee railed area was unreasonably hazardous to those working, in. the area, the trial judge concluded in. his written reasons:

“At • the point. of the accident, the guardrail bordering the pit and the bulkhead ended and at that point it was secured, by a brace that extended downward from the guardrail across the concrete bulkheád for almost the'total width of the bulkhead.
“The evidence preponderated that the bulkhead was used as a walkway; that the course of travel along the bulkhead to the truck was the most feasible if not the only path to take; that the brace across the bulkhead presented a hazard to one walking the bulkhead and presented an unreasonable risk of injury; that the absence of a guardrail bordering the pit and the bulkhead at the point where Burmaster stumbled, fell t and toppled into the pit was hazardous and presented an unreasonable risk of injury; that the Drainage District was aware of this hazardous- situation.”

When originally constructed, this pumping station did not have a guardrail along the bulkhead bordering the open drainage pit. Because the appellant recognized there was a danger to people working in that area, a guardrail was later added. However, in the area bordering the pit, the guardrail extended only 2 feet 4 inches from the edge of the pump shed leaving virtually the majority of the open pit unguarded. In addition, where the railing stopped, it had attached to it an angle brace which began about halfway up the 3 foot 6 inch high railing and extended downward 45 degrees directly across the bulkhead occupying some two and a half feet of the 3 foot wide walkway.

John Kern, accepted by the court as an expert in safety practices and regulations, testified that the placement of the brace across the bulkhead walkway presented an unreasonable risk of injury to anyone who would be working in that area because it presented an obstruction to safely working on the walkway or handling materials or equipment over it. Mr. Kern further testified that the absence of a guardrail on the bulkhead also presented an unreasonable risk of injury to people who would be traversing the bulkhead because of deep water in the open pit.

A.J. Scardino, accepted by the court as an expert in the field of safety engineering, concurred with Mr. Kern that the angle brace across the bulkhead walkway and the absence of a guardrail on that walkway both presented an unreasonable risk of injury to people working around them. Mr. Scardino testified the brace created a hidden “tripping hazard” for anyone occupied with performing a task other than just having to traverse the area. Further, he testified that had there been a guardrail along the bulkhead walkway, it probably would have prevented the fatality because it would have prevented Mr. Burmaster from falling into the pit.

It was also brought out at trial by both expert witnesses that each of these hazards independently violated certain guidelines of the Occupational Safety and Health Act (OSHA); namely, 29 CFR 1910.-22(c) and 29 CFR 1910.22(b)(1). These reg--ulations address the importance of protecting personnel from the hazards of open ■pits, tanks and ditches through the use of covers or guardrails and by providing aisles and passageways with no obstruction across them that would create a tripping hazard. Mr. Kern further testified that standards identical in nature to those of OSHA have been published by the American National Standard Institute, the Corps of Engineers and the National Safety Council Manual for Industrial Operations. While we recognize such standards and regulations may not be controlling, we do believe they merit much consideration as evidence of strong policies to afford protection to personnel working in hazardous areas such as in the instant case.

At the trial, the expert testimony of Messrs. Kern and Scardino stood unassailed. Appellant offered no experts to counter the testimony that the railed area was unreasonably hazardous to those working in that area. There was not so much as the proverbial scintilla of evidence presented which would contradict the direct proof on these points.

On appeal, appellant has failed to demonstrate to this court’s satisfaction how the trial judge could possibly be considered “clearly wrong” in his finding that the railed area was unreasonably hazardous to those working there. The record amply supports these findings. Accordingly, we believe the trial judge was correct as to the unreasonable risk of injury presented by the railed work area.

Appellant attempted to exonerate itself from liability by alleging “victim fault.” The trial judge, however, found such allegation unsubstantiated and ruled Mr. Bur-master, decedent, not negligent. As the trial court found liability based upon this area presenting an unreasonable risk of injury to those working there, this liability is in the nature of that imposed under LSA-C.C. Article 2317. Accordingly, we shall likewise treat the trial judge’s finding of no negligence on the part of Mr. Bur-master as a finding that his actions did not constitute victim fault.

Victim fault is tantamount to assumption of the risk. Gordon v. City of New Orleans, 430 So.2d 234 (La.App. 4th Cir.1983). Assumption of the risk is a subjective determination involving first the victim’s knowledge and appreciation of the danger and, secondly, a voluntary encountering of it. Gordon, supra; Carpenter v. State Farm Fire and Casualty Company, 411 So.2d 1206 (La.App. 4th Cir.1982).

Appellant attempts to argue that the corridor used by Mr. Burmaster was never designed to be used in a manner in which he used it. Appellant asserts Mr. Burmaster deliberately and intentionally chose a pathway that would cause him to step over an open and obvious brace while shouldering a heavy piece of equipment and attempting to negotiate a narrow corridor never intended for such use. Appellant wants this court to believe that Mr. Bur-master contributed to his own demise by going into an area that was unguarded and using a corridor that was not designed to be used as a corridor for the transportation of equipment or machinery.

Mr. Kern expressly stated that the decedent and his helper could not have removed the shaft through the pump shed. It was his expert opinion that, given the size of the shaft and dimensions of the pump shed, it would have been physically impossible to have worked the shaft around the engine along the side of the building and through the angled doors. Mr. Scardino corroborated Mr. Kern’s testimony by stating that from a logical material handling standpoint, the path Mr. Burmaster chose was the simplest. Mr. Scardino went further to say that Mr. Burmaster did nothing wrong. After a review of the evidence, we can come to no other conclusion than to agree with these expert witnesses.

Mr. Burmaster was faced with getting a job done at a job site that presented an unreasonable risk of injury to himself and others working there. In order to complete the job, it was determined the shaft would have to be removed and brought to the shop. After disconnecting the shafts, Bur-master and Ayo were attempting to move it through the only available egress.

Mr. Ayo, the only eyewitness to testify, was instrumental in clarifying the incident. He explained that neither he nor Burmas-ter had any difficulty with the weight of the shaft and that both were in control and had no problem in handling or carrying it. Ayo stated that they were in no hurry and were taking their time.

With Burmaster in the lead and on the bulkhead walkway, Ayo testified they were heading towards their truck when suddenly he felt a jar and Burmaster went down on his knees, then fell face forward into the walkway. Ayo explained Burmaster’s abrupt fall as a trip as if someone had stepped on his foot. Before being thrown into the water himself by the shaft, Ayo testified he saw Burmaster rolling off the side of the walkway into the pit. Ayo further stated that once Burmaster hit the walkway, it appeared he was knocked unconscious.

Appellant has not pointed to any actions taken by the victim which would indicate to this court that such actions constituted victim fault. The victim’s actions, as shown by the record, were reasonable and in no way demonstrate that they were in fact a cause of the incident. It is evident that this victim had no knowledge or appreciation of the danger he faced in removing the engine shaft. The trial judge did not err in reaching his conclusions concerning the victim’s actions.

Accordingly, for the above stated reasons, the judgment appealed from is hereby affirmed with all costs assessed to appellant.

AFFIRMED.

      . LSA-C.C. Article 2317: Wc arc responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which wc have in our custody. This, however, is to be understood with the following modifications.


author: DUFRESNE, Judge.

text:
    CITY OF WESTWEGO v. Gary McKEE, Westwego Municipal Fire and Police Civil Service Board.
    No. 83-CA-630.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Rehearing Denied April 17, 1984.
    Cyril H. Reisgen, Jr., New Orleans, and Michael F. Barry, New Orleans, for defendants-appellants.
    Gerald Arceneaux, Westwego, for plaintiff-appellee.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This is a civil service appeal. It involves an appeal by the Westwego Municipal Fire and Police Civil Service Board from a decision of the District Court reinstating the decision of the City of Westwego dismissing Police Officer, Gary McKee.

The surrounding facts of this ease are these. On July 13, 1982, Westwego Police Sergeant, Gary McKee was on patrol in Westwego, Louisiana when he stopped a speeding vehicle driven by Suzanne Dubois with guest passenger, Agnes Palermo.

After stopping in a parking lot, Dubois exited her vehicle, however, was unable to produce a driver’s license. Consequently, Officer McKee informed Dubois that she would have to be arrested. In response, Dubois questioned whether she could pay the fine without further complications.

Officer McKee obtained the relevant information from Dubois and discussed the amount of the traffic fine. McKee informed Dubois that the fine would be $65.00 dollars.

Dubois claims she then gave $65.00 in cash to McKee, for which McKee failed to give a receipt for the funds or to issue a traffic citation.

Shortly thereafter, Dubois filed a complaint with the Westwego Chief of Police, whereupon an investigation was conducted. Later that day, Officer Melvin Guillot, who was the relief officer for McKee discovered $65.00 cash in the same denominations as that used to pay McKee by Dubois in the police vehicle previously used by McKee.

During the investigation, all parties to this incident, namely Suzanne Dubois, Agnes Palermo, and Gary McKee were requested to submit to a polygraph examination. Dubois and Palermo consented to submit to the test and passed; however, Officer McKee refused to do so.

As a result of the investigation, the City of Westwego (the appointing authority) terminated Officer Gary McKee on July 27, 1982. McKee filed a request for a hearing to appeal his discharge to the Westwego Municipal Fire and Police Civil Service Board. The hearing was held on August 24th and 25th, 1982. The Board heard the testimony of Dubois, Palermo, Police Chief Warden and Officer Melvin Guillot, Sergeant Churcherillo (the polygraph examiner), Officer McKee and several others.

After the hearing concluded, the Board rendered its decision as follows: •

.... that on the basis ' of the evidence presented, that the appointing authority, although, perhaps acting in good faith, did not act for just cause. The burden of proof in establishing the guilt of the defendant, Gary McKee, was not established by a majority of the evidence, namely the testimony presented by complainant, Suzanna Dubois and Mrs. Agnes Palermo, as well as by the other evidence presented..
The Westwego Municipal Fire and Civil Service Board rules that the defendant, Gary McKee, be reinstated to his former position as Police Sergeant, retroactive to the date of his dismissal, with award óf all back pay.

From this decision the City of Westwego appealed to the District Court. The matter was submitted to the court by the parties on the basis of the transcript of the proceeding before the Board, along with attendant exhibits.

The District Court rendered its judgment reversing the Board’s order setting aside the action of the City of Westwego. In essence, the court reasoned that, inasmuch as the Board did not specifically find an absence of good faith on the part of the appointing authority, finding instead that the appointing authority “•... although perhaps acting in good faith, did not act for just cause”, such finding could not legally support the Board’s action of reinstatement. Citing City of Kenner v. Wool, 320 So.2d 245 (La.App. 4th Cir., 1975) and City of Houma v. Houma Fire and Police Civil Service Board, 405 So.2d 1132 (La.App. ist Cir.1981), the court reasoned that the Board’s failure to find that the appointing authority’s dismissal of McKee was made in bad faith (regardless of whether or not it was made “for cause”) was fatal to its decision reversing the appointing authority’s dismissal, in that, absent such a finding of “bad faith”, the Board was powerless to ■ review or modify the appointing authority’s action.

The Westwego Municipal Fire and Police Civil Service Board, seeking enforcement of its order, appealed the court’s judgment.

On appeal, the Westwego Municipal Fire and Police Civil Service Board assigns the following error for our review:

The District Court erred in holding that the Civil Service Board’s finding that the appointing authority, “although perhaps acting in good faith, did not act for just cause”, cannot support the Board’s action of reinstatement.

The District Court properly noted that absent of a finding of bad faith, the Board is without authority to modify the ruling of the appointing authority. Thus, we agree with District Court in its interpretation of the statute setting out the Board’s scope of review of an action by an appointing authority.

The Westwego Municipal Fire and Police Civil Service Board does not have the authority to reverse the action of the City of Westwego unless there is a showing that the city acted in bad faith without cause. City of Kenner v. Wool, 320 So.2d 245 (La.App. 4th Cir., 1975).

The pertinent statute which establishes the standard of appealate review is found in LSA-R.S. 33:2561, which provides in its pertinent parts:

... The board shall have complete charge of any such hearing and investigation, and may conduct it in any manner it deems advisable, without prejudice to any person or party thereto. The procedure followed shall be informal and not necessarily bound by the legalistic rules of evidence ... After such investigation, if the evidence is conclusive, the board may affirm the action of the appointing authority. If it finds that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or re-employment of such person. ..

The above statute has been interpreted to mean that the action of the appointing authority in order to be valid, must be both “in good faith” and “for cause”. The action of that authority must be set aside if it was not taken “for cause”, even though it may have been taken in “good faith”. Martin v. City of St. Martinville, 321 So.2d 532 (La.App. 3rd Cir. 1975). Which leads us to the principal concern throughout this matter: whether the dismissal of Officer Gary McKee was made “for cause”.

It was established by the Board, that the City of Westwego “... although, perhaps acting in good faith, did not act for just cause” (emphasis ours). However, the statute does not refer to just cause, rather “for cause”. We have concluded that a dismissal of a civil servant “for cause” is synomous with legal cause.

As clearly announced by our learned brothers on the Louisiana Third Circuit Court of Appeal in Martin v. City of St. Martinville, supra, Judge Hood writing for the court stated:

“that in order for the dismissal or the discipling of a tenured police officer to be valid, as being in good faith for cause under LSA-R.S. 33:2561, the dismissal or disciplinary action must be reasonably necessary for the continued efficiency of the service being rendered by the appointing authority. The evidence must show that the failure to dismiss or discipline the officer would be detrimental to the city or to the service which it is required to perform. The dismissal of such an officer cannot be said to have been made “in good faith,” if the appointing authority acted arbitrarily or capriciously, or if the action taken was the result of prejudice or political expediency. His dismissal cannot be said to have been ‘for cause,' if the evidence fails to show that it was necessary for the discipline and efficiency of the police department, or that it was needed to avoid some detriment to that department or to the city.”

Our review of the evidence convinces us that the dismissal of Officer McKee was made “for cause” and that the decision of the Board reversing that dismissal by the City of Westwego was improper.

After careful review of the record, Officer McKee’s conduct on the date at issue, was clearly violative of several police department rules as well as provisions falling within the ambit of LSA-R.S. 33:2560.

As per the testimony of Chief John Warden, the accepted procedure in issuing a traffic ticket for no driver’s license is to bring the individual to City Hall, and call for someone to pick up the party. The officers are not to allow the individual to drive his automobile. It was also established that the officer has the discretion to allow the individual to post a bond, but, never does the officer set the fine. Likewise, in order to allow the posting of a bond, a traffic ticket must be issued and a receipt given for any money received by the officer.

In the present matter, no ticket was issued and no receipt was given. Further, the money was not turned over to the City of Westwego as required.

Clearly, such actions by Officer McKee cannot be condoned.

Such rules and regulations are designed to insure the orderly and efficient administration of the service being rendered by the police department. Clearly, the efficiency and effectiveness of the police department as well as its image in the community is severely damaged when an officer conducts himself as demonstrated here by Officer McKee.

The standard of appellate review of findings of fact in civil service cases necessarily must be the same as those which exist in regard to cases arising in the trial courts. Herbert v. Department of Police, 362 So.2d 1190 (La.App. 4th Cir.1978).

Our review of the record reveals no clear error on the part of the trial court in its conclusions. Thus, we find no evidence that the trial court manifestly erred in concluding that Officer McKee’s dismissal was made in good faith and for cause.

For the reasons herein set out, the judgment appealed from is affirmed.

AFFIRMED.


author: DUFRESNE, Judge. GRISBAUM, Judge,

text:
    Mary Condoll, Widow of James S. CONDOLL v. JOHNS-MANVILLE SALE CORP. a/k/a Johns-Manville Products Corp.
    No. 83-CA-706.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      Gertler & Gertler, Judith A. DePraites, New Orleans, for plaintiff-appellant.
    Thomas M. Nosewicz, New Orleans, for defendant-appellee.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

This devolutive appeal arises from a summary judgment granted in favor of defendant, Johns-Manville, in a suit for Workmen’s Compensation death benefits pursuant to LSA-R.S. 23:1231 filed by plaintiff, Mary Condolí.

The litigation stems from the death of the plaintiffs husband, James Condolí.

On June 10, 1982, James Condolí filed a petition for Workmen’s Compensation benefits alleging that while employed by Johns-Manville, he performed his duties in the immediate area of asbestos, dust, silica and other harmful dust. Consequently, petitioner developed a painful and debilitating lung disease relating to this exposure.

In an effort to mitigate this lawsuit, Mr. Condolí and Johns-Manville entered into a court approved Workmen’s Compensation compromise settlement on January 14, 1983.

In the settlement, the petitioner, James Condolí discharged Johns-Manville from all further liability in consideration for $25,-000.00.

Now, Mary Condolí, widow of James Condolí, alleging that on February 6, 1983, Mr. Condolí died as a direct consequence of his occupational disease. Responding in accordance with this assertion, a petition for Workmen’s Compensation death benefits was filed on March 22, 1983. The defendant filed a Motion for Summary Judgment contending that it was entitled to judgment as a matter of law. The trial court granted the motion, and the matter was dismissed. The instant appeal followed.

The sole issue on appeal is whether a compromise settlement of an injured worker’s disability claim simultaneously compromises and settles the dependent spouse’s claim for death benefits under LSA-R.S. 23:1061, when the dependent spouse was not a party to the injured spouse’s disability settlement and received no consideration whatsoever.

It is clear that the plaintiff’s dead husband completely compromised any worker’s compensation claim he may have had against the defendant as evidenced by the Joint Petition to compromise.

The interesting aspect of this appeal is the plaintiff’s attempt to seek workmen’s compensation death benefits as a result of the death of her husband when the condition which caused his death was compromised and judicially settled.

The language of the compromised agreement is clear. There is absent any phrase which could be construed as a reservation or exclusionary clause. The parties obviously intended that the agreement be a compromise of all liability in this case. LSA-R.S. 23:1273 provides:

1273. Judgment of compromise
If the court believes the compromise agreed upon to be fair and equitable, and that it was entered into primarily to avoid or to end litigation, it shall approve the same, and immediately enter it as the judgment of the court, and the said judgment shall not thereafter be set aside except for fraud or misrepresentation made or induced by the employer or his insurer. The judge may, however, refuse to approve the settlement if he does not believe that it does substantial justice to the parties.

Under the above section, once the court approves the settlement of a worker’s compensation claim, said judgment is conclusive and cannot be set aside except for fraud, misrepresentation, or failure to comply with the compromise procedures set out in the worker’s compensation act. Smith v. Cajun Insulation Inc., 392 So.2d 398 (La.1980); Dupre v. Otis Engineering Corporation, 641 F.2d 229 (5th Cir. 1982). Thus, the judgment rendered on Mr. Con-doll’s claim is conclusive and cannot be set aside except for fraud, misrepresentation or failure to comply with the compromise procedures. The petition filed by Ms. Con-doll for death benefits lacks any allegation pertaining to fraud, misrepresentation, or failure to comply with the compromise procedures. Hence, plaintiff’s petition fails to state a cause of action or right of action under Louisiana law.

The plaintiff apparently argues that a cause of action for death benefits under the Worker’s Compensation Act is separate and distinct from that of the injured worker notwithstanding the fact that each claim arises out of the same accident, and therefore the compromise and settlement of the injured worker’s disability claim does not affect any potential claim for death benefits.

The purpose of LSA-R.S. 28:1231 is to provide for death benefits to the dependents of an injured worker where the injured worker reaches his untimely demise prior to any compromise or adjudication of the compensation claim.

There is no provision in the Louisiana Workmen’s Compensation Act for the dependent spouse to be a party to a pre-death settlement.

A compromise is an agreement to adjust the differences of two or more persons by mutual consent for preventing or ending a lawsuit. If entered into prior to the filing of suit, it must be in writing, LSA-C.C. Art. 3071. The law in Louisiana is clear with respect to written obligations. Courts are bound to give legal effect to all written contracts according to the true intent of the parties and this intent is to be determined by the words of the contract when there are clear, explicit and lead to no absurd consequences, LSA-C.C. Art. 1945; Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982).

In this case, what disputed matters were compromised? Was it a compromise of all liability? Compromise agreements cannot be attacked for an error in law or for lesion. However, compromise agreements can be contested for errors in calculation, error in the person, fraud, violence or an error on the matter in dispute, LSA-C.C. Arts. 3078-3079. Furthermore, the Louisiana Workmen’s Compensation statute provides that court approved settlements are conclusive and cannot be set aside except for fraud, misrepresentation, or failure to comply with compromise procedures set out under the act, Dupre v. Otis Engineering Corporation, supra.

A compromise agreement extends only to those matters which the parties expressly intend to settle. LSA-C.C. Art. 3073; Matthew v. Melton Truck Lines, Inc., 310 So.2d 691 (La.App. 1st Cir.1975). Ordinarily, the meaning and intent of the parties to a written contract (such as a written compromise agreement) must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence, LSA-C.C. Art. 2276; Tauzin v. Claitor, 417 So.2d 1304 (La.App. 1st Cir.1982). An exception to this rule exists when there is a dispute between the parties as to exactly what matters were intended to be settled by the compromise agreement, LSA-C.C. Art. 3079, Moak v. American Automobile Insurance Company, 242 La. 160, 134 So.2d 911 (1961); Munna v. Mangano, 404 So.2d 1008 (La.App. 4th Cir.1981).

Under LSA-R.S. 23:1271, an injured employee or his dependents have the right to compromise a Workmen’s Compensation claim. However, while the injured claimant is alive and has control of his mental faculties, payments are made only to him and in certain specific amounts set out under the Act. It is only upon death of the employee that the “Dependents” are capable of instituting a compensation claim.

While the rights to receive compensation are different for the employee and the dependents, each is based upon the same cause of action, namely, the employee having sustained a compensable injury. Both rights are dependent upon an original interrelationship of employer and employee and must be the result of the contraction of an occupational disease or injury arising out of and in the course of the employment. The dependent’s right to compensation death benefits and the employee’s right to compensation are so closely related that the parties have a community of interest. Until it is shown that the employee suffered a compensable injury, neither the employee nor the dependent is entitled to compensation. However, when it is established that the employee has suffered a compen-sable injury, the right to compensation for the injury or disease accrues to the employee and if he dies of such injury or occupational disease, it is in effect continued in favor of his dependents.

The fact that the compensation which the dependent thereby becomes entitled to receive is not new compensation for the death, but continuing compensation for the injury is evident from LSA-R.S. 23:1236 which provides:

1236. Payments to employee before death; effect on payments to dependents
Where payments of compensation have been made to the employee before his death, the compensation for dependents as provided for in this Subpart shall begin on the date of the last of such payments.

It logically follows that if the dependent’s compensation benefits can be diminished or eliminated, then a dependent should not be allowed to recover death benefits after the injured worker compromised and judicially settled his compensation claim, thereby releasing his employer from all further liability. The Workmen’s Compensation law of this State does not allow a double' recovery.

Accordingly, for the foregoing reasons, the judgment of the trial court dismissing the plaintiffs suit is affirmed.

AFFIRMED.

GRISBAUM, J., concurs.

GRISBAUM, Judge,

concurring.

I respectfully concur in the result.


author: CHEHARDY, Judge.

text:
    Norton NELKIN v. John E. PIOTROWSKI, d/b/a Jefferson Auto Brokers.
    No. 83-CA-662.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      Dinwiddie & Brandao, Edward J. Bran-dao, Metairie, for plaintiff-appellant.
    Steve J. Mortillaro, Metairie, for defendant-appellee.
    Before CHEHARDY, CURRAULT and GAUDIN, JJ.
   CHEHARDY, Judge.

Norton Nelkin instituted this suit against John E. Piotrowski, doing business as Jefferson Auto Brokers, as a result of alleged defects in a used 1977 Volkswagen purchased from defendant in 1979.

Within two months of the sale plaintiff contends various defects manifested themselves, necessitating numerous repairs. He alleges redhibitory defects and itemizes damages in the sum of $14,128.00 as follows:

Return of purchase price $4,125.00
Cost of repairs to date (January IS, 19X0) ' 1,500.00
Distress and inconvenience 5,000.00
Attorney’s fees 0,500.00

Following trial on the merits, judgment was rendered in favor of plaintiff in the sum of $290.68. Plaintiff has appealed.

The record reflects the following facts:

After test-driving the car on a few occasions over a period of several days, plaintiff agreed to purchase the automobile for $4,125.00. The price included sales tax, license fees, and $250.00 for an optional warranty for 12 months or 12,000 miles issued by Taylor and Associates. The purchase agreement provided for repairs to the fuel gauge, antenna, replacement of a missing jack, and fouled plugs. These repairs were made before the car was purchased on October 13, 1979. The speedometer reading was 31,000 miles.

Before buying the car plaintiff noticed a grinding noise. This was supposedly corrected but it still sounded the same to plaintiff. Plaintiff accepted the explanation that this was because of the front wheel drive design of the car and went ahead with the purchase.

Two or three weeks after the sale while plaintiff was returning from Baton Rouge at a speed of 55 miles per hour the car suddenly “died.” It was determined the alternator was loose and temporary repairs were made at a filling station.

After his return to New Orleans plaintiff took the car to his own mechanic, and on November 7, 1979 the alternator bracket was straightened and aligned, the belt was replaced, the engine was tuned and the valves were adjusted. The bill, including parts, was $157.56.

The following month more permanent repairs were made when the alternator belt was again replaced along with grommets, the battery was charged and the oil filter changed. The bill was $133.12.

Plaintiff complained the car used excessive amounts of oil and that there was an oil leak and the mechanic recommended a complete motor overhaul. Nelkin so advised Taylor and Associates, the warranty insurer, and they approved.

The overhaul was performed on January 14, 1980. Plaintiff paid the cost of $955.08 and sought to recover from Taylor, but the corporation had gone bankrupt. Plaintiff then called upon defendant to pay for the repairs. This was the first notice defendant had that plaintiff was having any problems with the car. He denied responsibility, concluding plaintiff had purchased warranty insurance and it was the insurer’s obligation, not his.

Testimony at the trial was given by plaintiff Nelkin, Walter K. Rupert, the expert mechanic who made the repairs, and defendant Piotrowski.

Plaintiff testified to the problems referred to above and other difficulties with the car in 1980, 1981 and 1982. (The suit was filed in 1980.) He stated that had he known of the problems he would not have purchased the car.

After January 1980 he continued to have problems with the alternator, the electrical system, water seeping into the back when it rained and an overheating problem.

The problem in the electrical system is not reflected in the bills until 1982, at which time the speedometer reading was 54,924 miles. Other items in the bill reflect normal maintenance charges, as admitted by plaintiff, such as brake relining in 1982.

Mr. Rupert, the expert, testified the alternator bracket in this model is poorly designed and the belts do not stay adjusted because vibration from the compressor shakes the bolts and wears out the rubber grommets which absorb the vibration.

Relative to the January 1980 repairs, Rupert testified Nelkin complained the car was using a lot of oil and the engine was running poorly. This was due to the fact that the valve stems were allowing oil to get into the combustion chamber and the engine was running hot because the rings were also worn out.

Based on his experience as a mechanic who works a great deal on Volkswagen automobiles he knew the manufacturer had a factory recall to replace the valve seal stems. When this occurred he replaced the seals, but put on the wrong seals. This caused the car to continue to use oil, but not as badly. When he redid the job the second time with the correct seals, there was no further problem. Rupert also indicated that under ordinary circumstances the valve seal stems usually start using oil at about 30,000 miles.

Piotrowski testified the car was in perfect condition when it left the lot and everything was in working order when Nel-kin took delivery. He had made the necessary repairs called for in the bill of sale and Taylor and Associates had inspected the car prior to issuing the warranty. He had no knowledge of any defects in the car and was unaware of any problems until plaintiff called him three months after the purchase.

He was unaware of alternator design problems in that model, but was familiar with plaintiffs complaint of a grinding noise prior to the sale. He attributed this to the new concept introduced by Volkswagen in 1975 of a transverse engine, and stated that factory recalls for service or design defects are common in new concepts.

Piotrowski stated at the time plaintiff took title to the car it had been checked completely. It was clean and serviceable and drove excellently. There was vibration at the time of sale but this is inherent in all transverse mounted engines. There were fouled plugs and the car was blowing black smoke which was fuel related, but this problem was corrected before the sale.

Appellant contends the trial court erred in (1) failing to hold the defects were redhi-bitory, entitling plaintiff to rescission or a further reduction in the purchase price, and (2) failing to award attorney’s fees.

Under LSA-C.C. art. 2520 a buyer is entitled to rescission if the defects in the thing sold render it absolutely useless or so inconvenient and imperfect that an informed buyer would not have bought it. Leonard v. Daigle Pontiac-Buick-GMC, Inc., 413 So.2d 577 (La.App. 1st Cir.1982).

The defects in the automobile in the instant case cannot be considered of such magnitude to support rescission of the sale. After all plaintiff has used the car for three years after the sale and had driven an additional 25,000 miles. Hence the trial court was correct in allowing plaintiff a reduction, rather than rescission. See Cassey v. Arnaudville Industries, Inc., 393 So.2d 215 (La.App. 1st Cir.1980).

In the present case the court awarded $290.68, the cost of the November and December repairs.

The proper measure of damages in an action to reduce the sale price is the difference between the actual sale price and the price a reasonable buyer and seller would have agreed upon if they had both known of the defect. Couch v. Frichter’s Sportsmen’s Haven, Inc., 365 So.2d 901 (La.App. 4th Cir.1978).

One of the principal factors in making such an award is the cost of repairing the defects. Depending on the circumstances this may be the only consideration. There being no evidence in the record to show a diminution of the value of the car, other than the cost of repair, apparently the trial court found the necessary repairs made in November and December were satisfactory, otherwise he would have made an additional award to plaintiff. We cannot say he was clearly wrong in that respect.

The court found defects with the alternator and engine existed at the time of sale but were not of such a nature as to warrant rebuilding the engine three months later. It also found that plaintiff failed to carry his burden regarding damages for inconvenience in that he failed to show any actual monetary loss. We agree with that conclusion.

Nor do we find evidence to support plaintiff’s contention that all of the repair bills related to vices inherent at the time of sale.

Relative to appellant’s second contention, to recover attorney’s fees the buyer must prove the seller had knowledge of the defect. It is sufficient for the buyer to prove actual or constructive knowledge by the seller.

Thus if the seller knew of the defect and failed to declare it to the buyer, the seller is liable for reasonable attorney’s fees. Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1st Cir. 1975); Juneau v. Bob McKinnon Chevrolet Company, 260 So.2d 919 (La.App. 4th Cir.1972). The court found plaintiff failed to prove defendant had actual or constructive knowledge of these defects at the time of sale. Defendant was not the manufacturer. He was merely a used car salesman; thus problems known to the manufacturer or the mechanic were not necessarily known to the seller. The court thus refused to grant attorney’s fees. We agree.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.


author: REDMANN, Chief Judge. GULOTTA, Judge, BARRY, Judge,

text:
    Winnie Louise CASBORN v. NEW ORLEANS PUBLIC SERVICE INC. et al.
    No. CA-1135.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Dissenting Opinion March 16, 1984.
    Rehearing Denied April 25, 1984.
    Writ Denied June 8, 1984.

      Daniel Frazier, Jr., Marrero, for plaintiff.
    Floyd F. Greene, New Orleans, for defendant.
    Before REDMANN, C.J., and BARRY and WILLIAMS, JJ.
   REDMANN, Chief Judge.

Plaintiff was injured when she fell on a rainy day on the wet floor of a public bus she had just boarded, before the bus began to move. She now appeals from the dismissal on the merits of her damage suit against the bus company. We affirm.

Although plaintiff testified she was “quite certain” that a sudden start by the bus caused her fall, the trial judge found that the bus had not started forward before plaintiff fell. Accepting the trial judge’s reasonable credibility evaluation, we find that the testimony evidently deemed credible by him supports his conclusion.

The trial judge also excluded any possibility that wetness of the bus floor might make the bus company liable, reasoning “Ellizey v. New Orleans Public Service, Inc., 365 So.2d 10 (La.App. 4 Cir.1978), held that tracked water on a bus floor does not violate even the highest degree of care owed a passenger by a common carrier.”

The record establishes that the day of the accident was rainy and the bus floor was wet, as from passengers’ coming in from the rain (although it may not have been raining at the very time that plaintiff boarded the bus). The record also fairly establishes that there was nothing else on the floor, and no irregularity in the floor itself, that might have contributed to plaintiff’s fall. The floor is made of grooved, rubbery material to make it skid-resistant. Plaintiffs shoe soles were also of rubber material.

Thus the record supports the trial judge’s evident factual conclusion that nothing on defendant’s part contributed to plaintiff’s fall, unless the wet condition of the bus floor did so; and Ellizey supports his legal conclusion that the mere presence of, or failure to warn of, water tracked and dripped onto a bus floor by passengers on a rainy day is not a breach of the bus company’s duty towards its other passengers.

But, after the trial court’s judgment, DeClouet v. New Orleans Pub. Serv. Inc., 434 So.2d 130 (La.App. 4 Cir.1983), writ refused 440 So.2d 757, without discussing Ellizey, affirmed a judgment for a passenger who claimed injury from a fall on a rainy day in a “puddle of water ... eight inches in diameter” on the “rubberized, grooved floor” of a bus, 434 So.2d at 131. DeClouet affirmed on the basis of the trial judge’s reasoning “that there existed such an accumulation of water (if not puddles) to require the bus floor be mopped or the passengers be warned. We cannot say, based on credibility, the trial judge erred.” Id. at 131.

DeClouet also rejected the argument that the passenger “should have known the bus floor was wet and therefore should have held on to the rail provided.” Id. at 132.

Thus DeClouet affirmed, while Ellizey had reversed, liability for failure to mop or warn. We find no factual difference to distinguish DeClouet from Ellizey (where the trial judge also “felt that defendant should have the floors of its buses mopped down every twelve or twenty-four blocks under rainy conditions,” 365 So.2d at 11, and “the wet floor was [not] unusually slippery because of its condition or because of some foreign substance on the floor,” id. at 12). The essential factual situation in both cases is that there is some water in an amount that the trial judge deems enough to require mopping or warning. DeClouet should have either followed Ellizey or (after submission to the court en banc under our internal rule) overruled it. This panel therefore now deems the court obliged to overrule either DeClouet or Ellizey. We conclude Ellizey was correctly decided. DeClouet is overruled by the court en banc.

As a practical matter public buses cannot avoid water on their floors in rainy weather. They cannot close their doors from the time rain begins until the streets are dry again. Nor is mopping a practical suggestion. Mopping at the end of a run, as the plaintiff in DeClouet apparently argued— or every 12 or 24 blocks as plaintiff in Ellizey argued, or any other alternative less than mopping after each wet passenger enters — does not prevent the sopping shoes or dripping umbrella of the very next passenger from leaving water on the floor for the second-next passenger (whose own shoes are probably already wet anyway, so that even a dry floor — much less a mopped one — would not assure the second-next passenger’s not falling). To impose a duty to mop so as to protect all passengers would require a mopper to follow each individual passenger to the seat, mopping each footstep and umbrella-drip, while other patrons waited outside to board the bus one by one. The law does not and as a practical matter could not impose such a duty.

Also as a practical matter, the reasonable person boarding a city bus on a rainy day already has a warning, from the rainy weather itself, that the bus floor will be wet. Thus the failure of a bus driver to warn of a merely wet floor is not a cause of a reasonable passenger’s fall, for the reasonable passenger already knows of the wet floor.

The law does not today make the common carrier absolutely liable for its passengers’ accidental injuries. The basis of liability for another’s injury is breach of some duty owed to the injured person. In ordinary tort cases, the injured person bears the burden of proving the breach of some general duty, of proving “fault” within La.C.C. 2315. In common carrier cases, the carrier’s duty to provide a safe passage gives the injured party a significant procedural advantage in that the injury itself suggests breach of the carrier’s duty to provide safe passage, the carrier therefore bears the burden of proof that the injury was not a result of the carrier’s breach, and in the absence of evidence of the cause of the injury the carrier is liable; Galland v. New Orleans Pub. Serv. Inc., 377 So.2d 84 (La.1979). But the proof in this case is that our plaintiff’s fall and injury can only have been contributed to by defendant, if at all, by the condition of the bus floor, and that condition was no worse than expecta-ble on a rainy day from other passengers’ tracking and dripping rain water onto the floor. Thus defendant proved that plaintiff was not injured because of a breach by defendant of its duty as a common carrier.

Affirmed.

BARRY, J., dissenting with opinion.

Court en banc on an overruling, with GULOTTA, J., concurring with written reasons and BARRY, BYRNES and WARD, JJ., dissenting.

GULOTTA, Judge,

concurring.

I concur.

Although I am of the opinion that De-Clouet and Ellizey can be factually distinguished (because of the apparent difference in the amount of water on the floor in the two cases), I feel, as stated in my dissent in DeClouet, the result was wrong. Accordingly, I concur with the majority overruling the DeClouet case.

BARRY, Judge,

dissenting.

The net effect of the majority’s strained reasoning is to exonerate a common carrier from liability for any amount of water on the floor which causes injury.

Ellizey simply held that the presence of water on a bus floor does not violate a carrier’s highest duty of care.

However, the trial judge in DeClouet (writs denied) found there was a sufficient accumulation of water to require its removal or at least a warning of the potential danger. Importantly, Ellizey noted “... that this is not a case where the wet floor was unusually slippery....” DeClouet involved a “sufficient accumulation” of water and is obviously factually distinguishable from Ellizey. The majority here ignores the judge’s fact call in DeClouet.

Not every passenger is pre-occupied with the weather. Nor is every grocery store patron on the alert for spillage on store floors — yet the store owner has a matter of minutes to find the spill and clean it.

If a common carrier had some responsibility for the condition of its floors, it has been effectively eliminated by the majority.

      . In accordance with our internal rule the question of overruling DeClouet or Ellizey has been submitted to the entire court, which overrules DeClouet, with Gulolta, J., concurring with written reasons and Barry, Byrnes and Ward, JJ., dissenting.


author: BARRY, Judge.

text:
    Thomas W. TUMBLIN, et al. v. GRATECH CORPORATION.
    No. CA-1227.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Bruce G. Reed, J.D., Reed & Reed, New Orleans, for plaintiffs-appellants.
    Gus A. Fritchie, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendant-appellee.
    Before BARRY, AUGUSTINE and CI-ACCIO, JJ.
   BARRY, Judge.

Plaintiffs, four former employees of defendant Gratech Corporation, appeal the dismissal of their suit for wages, vacation pay, penalties and attorney’s fees under LSA-R.S. 23:632.

Gratech Corporation, a Houston-based maintenance contractor, had an oral agreement to perform general maintenance for Ryan-Walsh Stevedoring at its bulk terminal in New Orleans for an indefinite period beginning March 15, 1981. Early in March, 1981, plaintiffs Thomas Tumblin, George Lee, James Rayford and Darryl Jordan were interviewed and hired by Gratech’s local manager, Jack Renger, who told them they would be entitled to two weeks’ paid vacation after completion of one year’s service.

Three of the plaintiffs testified they started work shortly after March 15, 1981, which was corroborated by Gratech’s payroll records. The other plaintiff, Tumblin, said he started on March 1, 1981; however, Gratech’s payroll ledger showed he began on March 15, 1981. On or about March 5, 1982, Gratech was informed by Ryan-Walsh that it would handle its own maintenance. Gratech was told to cease operations effective March 5, 1982 and vacate the premises by March 15, 1982.

When plaintiffs reported for work on March 5, 1982, Lee, Rayford and Jordan were told their services were no longer required and each was paid through March 5 in proportion to his semimonthly salary. Plaintiff Tumblin was given the option of continuing to work for Gratech at another location, or staying at the bulk terminal under employment to Ryan-Walsh. Tumb-lin opted to remain at the terminal (where he had worked for 12 years under various employers) and became general maintenance foreman for Ryan-Walsh. Gratech paid Tumblin through March 5, 1982 and he was subsequently paid by Ryan-Walsh beginning March 6, 1982. Tumblin testified he worked for Gratech 2'/a or 3 days from March 6-8, 1982 before he was “released” to work for Ryan-Walsh.

Tumblin alleges Gratech owes wages for those 2-3 days, plus statutory penalties, costs and attorney’s fees under R.S. 23:632. All plaintiffs claim they are entitled to two weeks vacation pay, statutory penalties, costs and attorney’s fees because Gratech refused to pay timely.

The trial court rejected all claims, finding none of the plaintiffs worked a full year in order to qualify for vacation pay. The court denied Tumblin’s claim for 2½ days’ wages because Ryan-Walsh’s payment to Tumblin for those days discharged any obligation of Gratech to Tumblin.

Plaintiffs first two assignments of error concern evidentiary rulings regarding the admissibility of statements made by Gra-tech’s local manager, Jack Renger. Citing the hearsay rule, the trial court sustained an objection to Renger’s alleged statements to the plaintiffs, made when they were discharged, that they would receive vacation paychecks in the mail. The court allowed plaintiffs to proffer the statements.

Plaintiffs’ candidly admitted Renger told them when they were hired that they would receive two weeks’ vacation if they worked a full year. Any statements made after the employer-employee relationship ended would not have unilaterally and retroactively altered the oral contract under which plaintiffs were hired.

Plaintiffs also complain about statements made by Renger to Gratech’s president, Mahoney, over the telephone; however, the trial judge made it clear in his oral ' ruling that his decision regarding Tumblin’s claim for unpaid wages was not based on Mahoney’s testimony. Thus, allowing this hearsay testimony was harmless error.

Plaintiffs also assert they were hired for a five-year term and were paid semimonthly; therefore, they are entitled to a full month's salary for March, 1982 when they were involuntarily discharged. That would constitute employment over one year entitling them to vacation pay. Plaintiffs predicate their claim on LSA-C.C. Art. 2749 which provides:

If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.

A prerequisite for recovery of wages under Art. 2749 is that the employee was hired for a definite term. The record is void of evidence that plaintiffs were hired for any fixed term. An employer who hires an employee without setting a definite term may dismiss the employee at any time, without incurring any liability for future wages. LSA-C.C. Art. 2747. Jackson v. East Baton Rouge Parish School Board, 393 So.2d 243 (La.App. 1st Cir. 1980); Senac v. L.M. Berry Co., 299 So.2d 433 (La.App. 4th Cir.1974).

Likewise, we find no support in the record or in our jurisprudence that a semimonthly salary entitles a worker to a full month’s salary after working only a part of the month. In Vanacor v. St. Amant, 379 So.2d 769 (La.App. 4th Cir.1979) this Court held that a monthly-salaried employee, discharged in the middle of a pay period, is entitled to a proportionate share of his salary based upon the ratio of days worked to the number of work days in the month.

Plaintiffs Lee, Rayford and Jordan concede they were paid through their last day with Gratech. They were not hired for a fixed term and were paid in full.

Plaintiff Tumblin testified he began working for Gratech on March 1, 1981 and worked until March 8, 1982. The trial court found that Tumblin may have assisted Renger in interviewing and selecting maintenance personnel prior to March 15, 1981, but Tumblin did not start working until March 15. That finding is supported by Gratech’s employment records and Tumblin’s payroll receipts.

Tumblin’s testimony that he worked 2 or 3 days for Gratech after it ceased operations is contradicted by Gratech’s personnel records. Tumblin admitted he remained in the same position and performed the same work for Ryan-Walsh as he did for Gra-tech, and both employment contracts were informal, oral agreements. It is difficult to determine when the transition took place. The fact that Gratech stopped paying Tumblin as of March 5, 1982 and Ryan-Walsh began paying Tumblin March 6 strongly suggests the change occurred on March 6. The trial judge did not make a definite finding that Tumblin continued to work for Gratech for 3 days after March 5, but ruled that:

With respect to having worked additional three days, he [Tumblin] admitted he received payment from Ryan Walsh. And that the Court finds that this is sufficient under the law to have discharged Graytech from its responsibility to Mr. Tumblin.

Ryan-Walsh’s payments to Tumb-lin for the three days extinguished any obligation of Gratech to pay Tumblin. Under LSA-C.C. Art. 2134, anyone, even a disinterested third party, may discharge a debtor’s obligation to a creditor:

An obligation may be discharged by any person concerned in it, such as a coobligor or a surety.
The obligation may even be discharged by a third person no way concerned in it, provided that person act in the name and for the discharge of the debtor, or that, if he act in his own name, he be not subrogated to the rights of the creditor.

The sole reason for Tumblin’s employment with Gratech was the sub-contract between Gratech and Ryan-Walsh. Ryan-Walsh thus stood in a position analogous to that of a “statutory employer”. Any work performed by Tumblin for Gratech after March 5,- 1982 inured to the benefit of Ryan-Walsh. Whether Ryan-Walsh paid Tumblin in Gratech’s name or in its own name, the payment discharged any obligation of Gratech without Ryan-Walsh becoming subrogated to any rights of Tumb-lin against Gratech.

Plaintiff’s reliance on the collateral source rule is misplaced. That principle holds that a tortfeasor may not benefit because of his victim’s receipt of insurance payments from sources independent of the wrongdoer’s procuration or contribution. Hudson v. Thompson, 422 So.2d 640 (La. App. 3d Cir.1982). The rule is based on the insurer’s and tortfeasor’s obligations being independent of each other; it has no application to this situation where only one employer owes the obligation to the employee. To allow Tumblin to recover from Gratech would unjustly enrich Tumblin at the expense of one or the other of his employers.

The judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.