author: COLE, Judge. SAVOIE, Judge,

text:
    Sarah Dunkley GUERIN, et al. v. John Roy GUERIN and Sandra Fairchild Guerin.
    No. 83 CA 0530.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied May 25, 1984.

      James C. Dewey, New Roads, for defendant, John Roy Guerin, individually and in his capacity as Administrator of the Estate of his minor child, John Robert Guerin.
    Frank P. Simoneaux, Baton Rouge, for defendant, Sandra Fairchild Guerin Greene, Loretta Kim Guerin and Kathleen Wrenn Guerin Thomas.
    Joseph M. Thibaut, Thibaut & Thibaut, Francis Audley Smith, Jr., Kearney, Smith & Chustz, Terry M. Irby, New Roads, for defendant and intervenor, Bank of New Roads.
    David Irvin Couvillion, McCollister, McCleary, Fazio, Mixon, Holliday & Hicks, Neil H. Mixon, Baton Rouge, for plaintiffs, Sarah Dunkley Guerin, individually and as Provisional Administratrix of the Succession of Joseph Hazael Guerin, Joseph W. Guerin, Sr., Thomas D. Guerin and Nancy Faye Guerin Couvillion.
    Patrick S. Ottinger, Plauehe, Hartley, La-peyre & Ottinger, Lafayette, for defendant and intervenor, Wagner and Brown and defendants, Franks Petroleum Inc., Mid-American Oil and Gas Investments, Ltd., 79-3, 1400 Corp. and El Paso Exploration Co. (Successor in interest to EPX Co.).
    J. Clayton Johnson and Mary Thornton Duhé, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants, Ennex, Inc. and Ennex, Ltd.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue in this case is whether or not a transfer of immovable property from parents to a son was a valid sale.

This litigation arises out of a transfer of immovable property in Pointe Cou-pee Parish from Joseph H. Guerin and Sarah D. Guerin to their son, John Roy Guerin, on March 6, 1971. The transfer was by authentic act on a standard “sale with mortgage” form. The property was fully described, as were three prior sell-offs from the larger tract. (See Appendix I for the complete description.) The description gave no total acreage or arpent figure but described the property as a tract having a front of three arpents, more or less, on the Upper Chenal of False River, by a depth of forty arpents, more or less. Following this, specific boundaries or tenements were given for all four sides. Such a sale would therefore be classified as a sale per aver-sionem rather than a sale by measure or by lump. See Civil Code Article 2495, Kile v. Louisiana Limestone Aggregates, Inc., 378 So.2d 978 (La.App. 3rd Gir.1979), writ refused 380 So.2d 71 (La.1980).

The act of sale stated the consideration was $40,000.00 plus the vendors’ reservation of the right of usufruct on a portion of the property sold. The $40,000.00 was represented by the buyer’s promissory note, payable in monthly installments of $150.00 with interest from maturity at five percent per annum. Sellers retained a vendors’ lien and special mortgage. The sellers also reserved the usufruct of their residence and the grounds surrounding it (measuring 250 feet by 175 feet) for the remainder of their natural lives. Further, they retained the exclusive right to harvest the annual pecan crop from all pecan trees on the property. Both usufructs were to continue until the death of the survivor of the two sellers.

Joseph H. Guerin died on March-26,1977. This suit was filed on October 28, 1980 by his surviving spouse, Sarah D. Guerin, and three of their children: Joseph W. Guerin, Sr., Thomas D. Guerin and Nancy Guerin Couvillion. John Roy Guerin, the vendee,' and his wife, Sandra Fairchild Guerin, were named as defendants.

Plaintiff, Sarah D. Guerin, contended she never consented to transfer the property and was forced to sign the act of sale against her will. The other plaintiffs contended the transaction was a simulated sale; that no money was actually paid, and that the transaction was for the sole purpose of depriving petitioners of their rightful share of the property. All petitioners prayed the purported sale be declared a simulated sale and hence null and void, thereby entitling them to be recognized as owners in indivisión with John Roy Guerin. In the alternative, petitioners prayed the transaction be declared a donation in. disguise and that their legitime be recognized. There followed objections of vagueness and no cause of action and an intervention by Wagner and Brown, a Texas general partnership. The partnership asserted its ownership of an undivided interest in a certain oil, gas and mineral lease which was executed by John Roy Guerin, as lessor, in favor of Ennex, Inc., as lessee, on November 18, 1977 and recorded on December 8, 1977.

After the objections of vagueness and no cause of action were partially sustained, the plaintiffs filed a supplemental and amended petition. They alleged that if the conveyance to John Roy Guerin was not a simulation or if it was found that he had in fact paid or obligated himself to pay a consideration for the property, then the conveyance was a donation in disguise because the consideration for the transfer was less than one-fourth of the fair market value of the property. Plaintiffs further contended that the transfer was absolutely null because it was in fact a donation and the donors had reserved the usufruct over the property in contravention of Article 1533. In the further alternative plaintiffs also sought to have the property collated to the succession of Joseph H. Guerin. They alleged further that a portion of the disputed property was the separate property of Joseph H. Guerin and a portion of it was community property belonging to Joseph H. Guerin and Sarah D. Guerin. Sarah Guerin sought to be restored as the owner of her share of the community property.

By further supplemental and amended petitions, Wagner and Brown, Ennex, Inc., Ennex, Ltd., Frank’s Petroleum, Inc., EPX Company, Bank of New Roads, Loretta K. Guerin, Kathleen Guerin Thomas and John Roy Guerin, as the administrator of the estate of his minor child, John Robert Gue-rin, were named as additional defendants. (For purposes of this opinion, we will refer to Wagner and Brown, Ennex, Inc., Ennex, Ltd., Frank’s Petroleum, Inc., EPX Company and their successors as the “oil company” defendants, their interests all having arisen out of the mineral lease executed by John Roy Guerin on November 18, 1977.) The interest of the Bank of New Roads arose out of a collateral mortgage executed by John Roy Guerin on October 20, 1976, recorded on the same date, affecting the entire tract of land. The remaining defendants are children of John Roy Guerin and Sandra Fairchild Guerin who were made beneficiaries of an act of donation to an irrevocable inter vivos trust which was duly recorded on August 28, 1980.

As a further complication, an intervention was filed by Mid American Oil & Gas Investments, Ltd. (which will be considered as one of the oil company defendants) and by Sarah D. Guerin as the provisional ad-ministratrix of the succession of Joseph H. Guerin.

After various motions for summary judgment and other exceptions were disposed of by the trial court, trial on the merits was held and the court found as follows:

“The 1971 transfer to John Roy Guerin was not a simulated sale under Civil Code Article 2480.
“The 1971 transfer to John Roy Guerin was a donation-in-disguise under Civil Code Article 2444 because the price was less than one-fourth (Vi) the value of the immovable.
“The partial usufruct reservation did not render null and void the donation because Article 1583 applies only to gratuitous donations.
“The property is ordered returned to the mass of the succession to restore equality among the heirs. All fruits and revenues, and any advantages or benefits which John Roy Guerin may have received as an advance of his inheritance must also be returned.
“The property returns to the mass of the succession, subject to and encumbered with the 1976 mortgage in favor of the Bank of New Roads and the 1977 ‘oil, gas and mineral lease.’
“Any diminuition (sic) in value of the immovable due to the real rights burdening the property must be accounted for by John Roy Guerin under Civil Code Article 1264.”

The formal judgment, purportedly in conformity with the written reasons of the trial judge, was signed on the 24th of November, 1982. Therein the sale in question was declared to be a donation in disguise within the meaning of Article 2444. The judgment stated that as such this transfer constituted an advance on the inheritance of John Roy Guerin and ordered the property to be collated in accordance with Articles 1227, et seq., and returned in kind to the mass of property comprising the succession of Joseph H. Guerin. In addition, the plaintiffs were' given a money judgment in the amount of $73,057.00 representing the various fruits and revenues received by the defendants from the property in question. The defendants’ donation of the mineral interests to their children was declared null and void as to the plaintiffs, and such mineral interests were ordered returned to the succession of Joseph H. Guerin for further disposition in accordance with the succession laws of the State of Louisiana. Finally, the interests of the Bank of New Roads and the oil company defendants were recognized as prevailing over the interests of the plaintiffs; therefore the property, when returned to the succession of Joseph H. Guerin, would still be subject to the collateral mortgage and the mineral lease, but the diminution caused thereby would be charged to the defendants.

Defendants John Roy Guerin and Sandra Fairchild Guerin both perfected devolutive appeals, as did all of the plaintiffs insofar as the judgment was in favor of the oil company defendants. The judgment insofar as it was in favor of the Bank of New Roads has become final.

On this appeal, defendants-appellants John Roy Guerin and Sandra Fairchild Gue-rin assert the trial court erred as follows: (1) in holding that “price” within the context of Article 2444 means the “economic or time value” of the promissory note given in representation thereof; (2) in fixing the value of the property which was conveyed; and (3) in ordering collation in this action which is an action to declare a conveyance invalid and is not a suit directly involving the succession of Joseph H. Guerin.

The procedural posture of this case is quite complicated because the property-transferred consisted of both separate and community property and because one of the sellers, Sarah D. Guerin, is still living. The conclusion which we reach herein, however, makes it unnecessary to decide several issues. We need not determine whether or not Sarah D. Guerin can attack a transfer of her husband’s separate property, whether or not the option to collate in kind or to collate by taking less can be exercised by anyone other than the heir from whom the collation is due, whether or not the heir whose property is collated has the right to renounce the succession as an alternative to collation, and whether or not a money judgment can be rendered in this action as a part of the ordered collation.

We conclude the transaction from Joseph H. Guerin and Sarah D. Guerin to John Roy Guerin on the 6th day of March, 1971 was neither a “pure simulation” nor a “disguised transfer” but was in fact a legitimate sale. It is uncontroverted that Joseph H. Guerin intended to sell the property to his son, Roy. It is not disputed that payments were made and are still being made by the buyers to the sellers. This leaves two questions to be answered. One, was the “price" paid in 1971 the figure of $40,000.00 stated in the sale with mortgage or was it the economic value of the promissory note which was given in representation of the price? Two, does Civil Code art. 2444 apply to Mrs. Sarah D. Guerin with reference to her interest in the community property which was transferred?

Answering the questions in reverse order, we conclude Mrs. Guerin can not take advantage of article 2444 but has only the action to set aside the transfer of community property on the basis of fraud and duress. We conclude without any hesitation whatsoever that this cause of action was not proven. The only evidence concerning Mrs. Guerin’s duress was her own testimony that Mr. Guerin said he would leave if she did not sign the papers. This is patently insufficient. Articles 1848, 1851. See Buxton v. McKendrick, 223 La. 62, 64 So.2d 844 (1953), rehearing denied 1953; and Lewis v. Lewis, 387 So.2d 1206 (La. App. 1st Cir.1980).

As to the second question, we disagree with the trial court that “price” under Article 2444 is the real value of the consideration given at the time of the sale and since the “economic value” of the promissory note on the date of the sale was only $18,638.16, that this was the “price." We further disagree with the trial court in its findings that the property described in the sale contained a total of 102.86 acres rather than 89.89 acres as shown on the only actual survey admitted into evidence. Finally, we disagree with the trial court in its conclusion that the property transferred had a value in 1971 of $1,000.00 per acre. Even if we were to accept such a valuation, the provisions of Article 2444 would not be met since the price ($40,000.00) would not be below one-fourth of the real value (as determined by the trial court) of the immovable sold.

Perhaps the primary issue which must be faced is the argument made by plaintiffs that “price” under Article 2444 is the “economic value” of the promissory note at the time of sale which, according to plaintiffs’ witness, was $18,638.16. Plaintiffs argue further that the articles relating to lesion, specifically Articles 1870 and 1871, should be engrafted to the provisions of Article 2444. Although this argument is ingenious it is without justification or authority. Lesion is a specific remedy with specific rules and a specific prescriptive period. Articles 1860, et seq., and Articles 2589, et seq. Joseph H. Guerin and Sarah D. Guerin had the right to bring a suit to set aside the transfer to John Roy Guerin for a period of four years after the date of the sale. Articles 1876, 2595. Obviously, they chose not to do so.

Article 2464 sets out the essential elements of price. This article is devastating to the plaintiffs’ argument. It reads as follows:

“The price of the sale must be certain, that is to say, fixed and determined by the parties.
“It ought to consist of a sum of money, otherwise it would be considered as an exchange.
“It ought to be serious, that is to say, there should have been a serious and true agreement that it should be paid.
“It ought not to be out of all proportion with the value of the thing; for instance, the sale of a plantation for a dollar could not be considered as a fair sale; it would be considered as a donation disguised.”

We find no merit in the argument that Joseph H. Guerin and his son fixed and determined a price of $18,638.16. Hypothetically, if six months after the transfer, John Roy Guerin and Sandra F. Guerin had decided to pay off the indebtedness to their vendors, could they have liquidated their obligation for $18,638.16 less any monthly payments previously made? The vendees did not prepare a negotiable promissory note and then bargain for its exchange for the property. To the contrary, the parties agreed upon a fixed sum of money ($40,000.00). Considering these circumstances — a fixed price, the reservation of the usufruct of the house, and the reservation of the pecan crops — we can conclude only that this was a serious consideration, not at all out of proportion with the value of the thing received.

After the parties agreed upon the price, a separate and distinct issue arises: the discharge of the buyer’s obligation to pay the price. Article 2549. The price may be paid on the day of the transfer or at some later date. Article 2550. Interest on the unpaid price may or may not be stipulated according to the will of the parties. Article 2553. The term of payment given by the seller to the buyer and provisions for interest or lack thereof do not make the purchase price uncertain. To hold otherwise would contradict the plain terms of Article 2464.

The trial court relied upon Article 2239 as authority for admitting parole evidence to prove the economic valuation of the “price”. This article permits forced heirs to use parole evidence to show a stated price in the act of transfer was in fact not paid. In other words, parole evidence may be used to show facts at variance with those stated in the deed. The end result is to determine the true intent of the parties. In this case, it is conceded there is nothing false stated in the act of transfer under consideration. The transfer in question was not a pure simulation and was in fact intended by both sellers and buyers to be a sale for a certain and serious price. We find nothing in Stevens v. Stevens, 227 La. 761, 80 So.2d 399 (1955) nor Bell v. Bell, 339 So.2d 1333 (La.App. 3rd Cir.1976), relied upon by the trial court, which would support the “economic valuation theory”. In Stevens, the consideration was $2,500.00 cash. In Bell, there was an attempt to prove a consideration other than that stated in the sale. In such a case, the court should determine if the actual consideration is equivalent to the value of the thing transferred. But where the stated consideration and the actual consideration are the same, there is no further inquiry.

Having concluded that the “price” is $40,000.00, the next question is whether or not that price is below one-fourth of the property’s real value at the time of the sale. The record contains a great deal of testimony concerning the actual acreage of the tract, together with the testimony of expert witnesses who attempted to fix a “fair market value” as of 1971. In spite of the fact that the only survey introduced into evidence showed an acreage of 89.89 acres, the trial court adopted the figure of 102.86 acres as the amount of land transferred. We do not agree with this conclusion nor do we agree that a value of $1,000.00 per acre in 1971 is realistic. However, even adopting the conclusions of the trial court that the land had a value of $101,940.00, a consideration of $40,000.00 would exceed one-fourth of this “real va-lúe” at the time of sale. Accordingly, we conclude plaintiffs have failed to prove the necessary elements under Article 2444 to set aside the sale.

Finally, we believe the decision of our Supreme Court in Owen v. Owen, 336 So.2d 782 (La.1976), precludes us from considering the plaintiffs’ arguments concerning collation and reduction. In a case with remarkably similar facts, the Supreme Court said, page 789:

“Collation, however, is not properly de-mandable in this suit which is primarily an action to set aside a sale by a parent to one of his children on the ground that it is a donation in disguise and a donation omnium bonorum. Collation is made only to the succession of the donor, C.C. art. 1242, and it is clear that a demand for collation must be brought incident to a succession proceeding, and not made part of a suit to nullify a sale.” (Citations omitted.)

Owen and the cases cited therein are clear authority for sustaining the position of the oil company intervenors and defendants as well as the Bank of New Roads who acted in reliance on the public records. The holding of the trial court in connection with these intervenors and defendants is correct.

The reason for this rule, that matters of collation and reduction must be incident to the succession proceedings, seems apparent. The obligation of collation is founded on the equality which must be observed naturally between children (and other lawful descendants) who divide the succession of their father or mother among themselves. Article 1229. Many options are available to the heir who must collate. Articles 1237, 1255, 1269. See Estate of Schwegmann v. Schwegmann, 344 So.2d 13 (La.App. 4th Cir.1977). The right of seeking a reduction of an excessive donation, either inter vivos or mortis causa, Article 1502, must be preceded by a calculation under Article 1505. Donations inter vivos cannot be reduced until the value of all the property comprised in donations mortis causa be exhausted. Article 1507. These stated principles make it apparent that these are succession matters and must be dealt with accordingly.

Plaintiffs contend, however, that the intervention of the administratrix of Joseph Guerin’s succession in some way permits the trial court to order collation and exercise the options available to the heirs. We disagree because the intervention of a succession representative cannot convert an action to annul a sale into a succession proceeding. Even assuming ar-guendo that such a procedure was possible, we would still be forced to conclude that there is insufficient evidence in the record to decide the questions which would thus be presented.

Accordingly, we hold that the plaintiffs have failed in their burden of proof under Article 2444 and that they are not entitled to demand collation in these proceedings. The judgment of the trial court is therefore reversed in part and plaintiffs’ suit, along with the intervention of the provisional ad-ministratrix of the succession of Joseph H. Guerin, is dismissed. All costs of court are assessed against plaintiffs.

REVERSED IN PART; AFFIRMED IN PART.

SAVOIE, J., concurs specially.

APPENDIX I

A certain tract of land, with all buildings and improvements thereon, situated on what is commonly called the Island of False River, in the Parish of Pointe Cou-pee, State of Louisiana, said tract of land having a front of three (3) arpents, more or less, on the Upper Chenal of False River by a depth of forty (40) arpents, more or less, and is bounded as follows: In front of North by said Upper Chenal of False River, on the Upper Side or East by property formerly of Willie Chustz and now in part by property of Joseph Henry Morel, III, and in part by property of J. Clement Chustz, on the lower side or West by property of heirs of Adam Guerin, or assigns, and in the rear or South by property formerly of Ventress, now of John E. Jumon-ville, or assigns.

Being the same property acquired by the present vendor, Joseph Hazael Guerin, as follows: A portion thereof was acquired by purchase from Bank of New Roads by act of sale dated January 3, 1917, recorded under Entry No. 1057 of Book “A”, conveyance records of Pointe Coupee Parish, Louisiana, and the remainder was acquired by purchase from Mrs. Bertha St. Dizier Gau-din and Dr. James 0. St. Dizier by act of sale dated October 21,1931, recorded under Entry No. 1455 of Book “H”, conveyance records of Pointe Coupee Parish, Louisiana. Subject to: Right of way for the State Hardsurfaced Highway which runs along False River (now known as La. State Highway No. 414).

LESS AND EXCEPT from the above described property, the following lots or parcels sold therefrom:

(1)A certain lot or parcel of land, fronting seventy-one (71) feet on Highway No. 414, by depth between parallel lines of one hundred fifty (150) feet; the eastern or upper boundary line of the lot of ground herein described is 213.2 feet distant from the western, or lower, boundary line of property belonging formerly to Heirs of Mr. and Mrs. Willie Chustz; and which lot of ground is bounded North by the right of way of said Public Highway, East, South and West by remainder of larger tract of land of Joseph Hazael Guerin, from this lot was taken.

Being the same property sold by Joseph Hazael Guerin to Joseph Warren Guerin by act of sale dated October 2, 1948, recorded under Entry No. 411 of Book 22, conveyance records of Pointe Coupee Parish, Louisiana.

(2) A certain tract of land, containing 5.88 acres, more or less, lying between the upper Chenal of False River and the Public State Highway along False River (now known as La. State Highway No. 414), having a front of five hundred twelve (512) feet, more or less, on the right of way of said Highway by a depth extending to the Upper Chenal of False River and is bounded North by said Upper Chenal of False River, East by property of Heirs of Mr. and Mrs. Willie Chustz, or assigns; South by the right of way of said State Highway No. 414, and West by property of Heirs of Adam Guerin, or assigns, said tract of land being described more fully in the act of sale by Joseph Hazael Guerin to John Roy Guerin hereinafter referred to, in two parcels, and is more fully shown and described on a map of survey thereof, made by J.N. Garrett, Civil Engineer, dated February 10, 1958, a copy whereof is recorded under Entry No. 125 of Book 46, conveyance records of Pointe Coupee Parish, Louisiana.

Being the same property sold by Joseph Hazael Guerin to John Roy Guerin by act of sale dated March 31, 1958, recorded under Entry No. 125 of Book 46 of the conveyance records of Pointe Coupee Parish, Louisiana.

(3) A certain lot or parcel of land, situated on what is commonly called the Island of False River, in the Parish of Pointe Cou-pee, State of Louisiana, being in Section 117 , Township Four (4) Range Ten (10) East and being more particularly described as follows, to-wit:

Starting at a point on the South Boundary of Louisiana Highway No. 414, said point being located 30 feet from the center line of the asphalt surfaced roadway and on the property line dividing land owned by Joseph Hazael Guerin and Henry Morel III, thence N 69° 52' W, along the South Boundary of La. Hwy. No. 414 a distance of 177.2 feet, to the point of beginning; thence proceed S 21° 00' W, a distance of 175.0 feet and corner; thence proceed N 69° 52' W, a distance of 107.0 feet and corner; thence proceed N 21° 00' E, a distance of 25.0 feet and corner, said corner being the Southwest corner of a lot presently owned by Joseph Warren Guerin, thence S 69° 52' E, along a property line presently dividing property owned by the Vendor and the Vendee, a distance of 71.0 feet and corner, said corner being the Southeast corner of a lot presently owned by the Vendee; thence N 21° 00' E, along a property line dividing property presently owned by the Vendor and the Vendee, a distance of 150 feet and corner, said corner being the Northeast corner of a lot presently owned by the Vendee and located 30 feet from the center line and on the South Boundary of La. Hwy. No. 414,; thence S 69° 52' E along the South Boundary of La. Hwy. No. 414 a distance of 36.0 feet, to the Point of Beginning, containing 0.185 acres and being more particularly shown on the Map of Survey by J.N. Garrett, Civil Engineer, dated Peb. 13, 1971, an official copy of which map is hereto annexed and hereof made a part for greater certainty of description.

The property herein presently sold and conveyed is taken from two larger tracts of land which were acquired by the present vendor, Joseph Hazael Guerin, as follows, one by purchase from Bank of New Roads by act of sale dated January 3rd, 1917, recorded under Entry No. 1057 of Conveyance Book “A”, and the other by purchase from Mrs. Bertha St. Dizier Gaudin and Dr. James O. St. Dizier by act of sale dated October 21,1931, recorded under Entry No. 1455 of Conveyance Book “H”, records of Pointe Coupee Parish, Louisiana.

For identification:

/s/ Joseph Hazael Guerin

/s/ Mrs. Sarah Dunkley Guerin

SAVOIE, Judge,

concurring specially.

This special concurrence is written to acknowledge that plaintiffs, Joseph W. Guerin, Sr., Thomas D. Guerin, and Nancy Guerin Couvillion, may have a right to collation under the provisions of R.C.C. 1248. Since the Succession of Joseph H. Guerin has been opened, plaintiffs’ rights, if any, would exist in that proceeding. Nothing in this opinion precludes the exercise of rights extant under R.C.C. 1248.

      . All further statutory references in this opinion are to the Louisiana Civil Code.

      . At the time of the transfer in question, article 1533 prohibited a donor from reserving the usu-fruct of immovable property for himself. The article was amended in 1974 to allow such reservations.

      . This article reads as follows:
      "The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale.”

      . At the time of judgment Sandra Fairchild Gue-rin had apparently remarried and was listed as Sandra Fairchild Guerin Greene.

      . We note a discrepancy in the trial court's figures; 102.86 acres, valued at $1,000 each, equals a sum of $102,860 rather than $101,940. The court apparently subtracted .92 acre from the total, perhaps recognizing that a small portion of the tract was retained under usufruct. The portion retained, measuring 250 ft. X 175 ft., is actually 1.004 of an acre, but this discrepancy is of no significance.


source: Caselaw Access Project

author: CRAIN, Judge.

license: Public Domain

text:
    OFFICE OF ENVIRONMENTAL AFFAIRS v. McWHORTER AND ASSOCIATES, INCORPORATED.
    No. 83 CA 0568.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Roland Huson, Legal Div., Dept, of Natural Resources, Baton Rouge, for plaintiff-appellee.
    William G. Guste, Atty. Gen., Baton Rouge, John Saunders, Ville Platte, for defendant-appellant McWhorter & Associates, Inc.
    Before SHORTESS, -LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal taken by McWhorter and Associates, Incorporated (McWhorter) from an adverse finding of the Environmental Control Commission (ECC).

Water Discharge Permit Number 0051, effective October 1, 1981, was issued to McWhorter by the Department of Natural Resources (DNR) permitting McWhorter to treat and discharge reserve pit water at drilling sites throughout the State of Louisiana.

On July 30,1982, a Statement of Charges was issued by the ECC citing numerous violations of the conditions of McWhorter’s permit and the Environmental Affairs Act (EAA). A copy of the Statement of Charges was served on McWhorter, together with a summons to appear before the Commission on August 26, 1982, for an adjudicatory hearing.

McWhorter notified the ECC that it desired to contest the charges and on August 26, 1982, the ECC ordered the adjudicatory hearing before the ECC rescheduled for October 19, 20, and 21, 1982.

The adjudicatory hearing was held before the ECC and upon the review of all evidence presented, the ECC on October 28, 1982, adopted the following findings of fact and conclusions of law, and issued the following order:

FINDINGS OF FACT
1. McWhorter and Associates, Inc., operating under Water Discharge Permit Number WP0051, on or about March 5, 1982, allowed the discharge of 400 barrels of wastewater from frac tank located at the Williams Exploration Company Mecom 20 well site in the Second Bayou Oil Field in Cameron Parish.
2. The water so discharged had a COD level of 190.2 miligrams per liter and a total chromium level of .521 miligrams per liter, exceeding the permitted discharge limits.
3. This discharge entered a marsh leading to Second Bayou.
4. In seeking permission to discharge, McWhorter and Associates, Inc., had reported to the Office of Environmental Affairs that the COD level of the proposed discharge was 85 miligrams per liter and the chromium level was 0.008 miligrams per liter.
5. On or about March 10, 1982, from the Chevron Santa Fe 120 drilling site in Pointe Coupee Parish, McWhorter and Associates, Inc., discharged reserve pit water which had a COD level of 132.2 miligrams per liter, however, when requesting permission to make the discharge stated that a COD level was 44 mili-grams per liter.
6. This discharge entered the natural drainage of Pointe Coupee Parish.
7. On or about May 18, 1982, from the Plattsmeir-Hulin No. 1 well site near Rayne, Louisiana, McWhorter and Associates, Inc. discharged over 30,000 barrels of reserve pit water which contained chlorides at a level substantially in excess of 500 mili-grams per liter and which had a COD level of 683 parts per million, exceeding the permitted discharge limits.
8. McWhorter and Associates, Inc. failed to obtain approval for the discharge.
9. Laboratory results reported by McWhorter and Associates, Inc., in connection with the May 18, 1982, discharge indicated the COD level of 80 miligrams per liter and a chloride level of 285 miligrams per liter.
10. This discharge entered Bayou Queue de Tortue.
11. Prior to the May 18, 1982, discharge, McWhorter and Associates, Inc., utilized test methods and procedures which have not been EPA or State approved and are not listed in the latest edition of Standard Methods for Examination of Water and Wastewater, in violation of the permit.
12. McWhorter and Associates, Inc., knew or should have known the nature of the discharge.
13. McWhorter and Associates, Inc., did fail to maintain adequate records and equipment and to use only approved test procedures in its laboratory. McWhorter and Associates knew or should have known the test methods used would cause results not contemplated by the intent of the approved test procedure.
CONCLUSIONS OF LAW
1. The Office of Environmental Affairs has met its burden of proof in proving that on March 5, March 10, and May 18, 1982, McWhorter and Associates, Inc., discharged into the waters of the state waste substances which tended to cause water pollution in violation of Louisiana Law.
2. Second Bayou, natural drainage of Pointe Coupee Parish, and Bayou Queue de Tortue are waters of the state.
3. McWhorter and Associates, Inc., violated the terms and conditions of its permit and of Section 1096A of the Environmental Affairs Act in making discharges on or about March 5, 1982; March 10, 1982; and May 1982.
4. McWhorter and Associates, Inc., violated the terms and conditions of its permit and of Section 1096D of the Environmental Affairs Act by failing to report the discharge of certain substances into the waters of the state on May 18, 1982.
5. McWhorter and Associates, Inc., violated the terms and conditions of its permit by failing to maintain required and adequate records, utilizing substandard laboratory equipment and using unapproved test procedures.
6.McWhorter and Associates knew or should have known that it was violating the terms of its permit and the provisions of the Environmental Affairs Act.
ORDER
IT IS ORDERED BY the Louisiana Environmental Control Commission that:
1. Taking into consideration the law, the evidence brought forth concerning the violations and the penalty provisions established in the Louisiana Environmental Affairs Act, McWhorter and Associates, Inc. shall pay within sixty (60) days from this date, a civil penalty in the amount of $16,500.00 to the Office of Environmental Affairs through the Clerk of the Environmental Control Commission, for violations specified in the findings of fact and conclusions of law.
2. Taking into consideration the law, the evidence brought forth concerning the violations and the penalty provisions established in the Louisiana Environmental Affairs Act, the water discharge permit of McWhorter and Associates, Inc. is hereby revoked.

McWhorter appeals alleging ten assignments of error.

ASSIGNMENTS OF ERROR
1. The statutory scheme of R.S. 30:1073, does not permit the Commission to assess a civil penalty in a case where a compliance order has been issued and the respondent has not violated the compliance order.
2. The entire statutory scheme upon which this action was based is unconstitutional in that it deprives the Respondent of his day in court since the Environmental Control Commission is not a fair and impartial body as it is both administrative and fact finding and does not have the pure impartiality that judge or jury would provide.
3. The penalty assessed by the Commission if, in fact, authorized by law, was excessive.
4. The charge of excessive discharge was not proven by the State of Louisiana.
5. The State of Louisiana, through the Department of Natural Resources, made no showing at any time of any damage to the environment.
6. The charge of excessive discharge of March 10, 1982, made by the Department of Natural Resources was not proven by evidence.
7. The charge of excessive discharge of COD’s on March 18,[] 1982, made by the Department of Natural Resources was not proven by evidence.
8. Maintenance of inadequate records was not proven by the evidence presented.
9. The charge alleging the failure to use proper equipment was not proven by the evidence presented.
10. Respondent acted at all times in good faith and followed the law as promulgated and there is no basis for a penalty in this case.

ASSIGNMENT OF ERROR NO. TWO:

McWhorter alleges that the statutory scheme under which it was fined is unconstitutional under La. Const, of 1974, art. II and XXII. These articles provide that all courts shall be open and every person shall have an adequate remedy by due process of law administered without partiality. McWhorter argues that there was never a hearing before an impartial fact finding body because the ECC is in fact the administrative agency of the Louisiana Environmental Affairs Act. Therefore to require McWhorter on appeal from the ECC to overcome the “manifest error”- rule deprives McWhorter of the constitutional right to have a hearing at any stage before an impartial body. We disagree.

Our courts have held that the combination of investigative and adjudicative functions performed by the Civil Service Commission does not violate due process. cf. In Re Haggerty, 257 La. 1, 241 So.2d 469 (La.1970); Vidrine v. State Parks and Recreation Commission, 169 So.2d 641 (La.App. 1st Cir.1964), cert. denied 247 La. 348, 170 So.2d 867 (1965). The ECC is analogous to the State Civil Service Commission in that a party has the right to appeal from either of the Commission’s decisions. An impartial administrative tribunal is essential for the efficient and fair implementation of the EAA. There is no showing of impartiality by the ECC that denied McWhorter due process of law.

Additionally, we see no reason why our standard of review of findings of fact of the ECC should differ from the standard we use to review decisions from the Civil Service Commission. In Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 (La.App. 1st Cir.1976), writ denied 343 So.2d 1078 (La.1977), this court held that the factual determinations of the Civil Service Commission will not be set aside on appeal unless they are shown to be manifestly erroneous. Applying that standard in Civil Service Commission cases creates no constitutional infirmity, and we fail to see how it would create one here. Therefore, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. FIVE:

In this assignment of error McWhorter alleges that the State, through the DNR, made no showing of any damage to the environment as a result of any discharge and therefore the penalty assessment should be overturned.

A showing of actual damage to the environment is not a prerequisite for assessing a civil penalty under La.R.S. 30:1073(E)(1). This assignment lacks merit.

ASSIGNMENT OF ERROR NOS. FOUR, SIX AND SEVEN:

These assignments relate to proof at the ECC hearing of McWhorter’s violations of its permit. McWhorter alleges in these assignments of error that the charge of excessive discharge in violation of its permit was not proved by the evidence presented.

The ECC found that on March 5, 1982, McWhorter discharged 400 barrels of waste water. This water had a COD level of 190.2 milligrams per liter and a chromium level of .521 milligrams per liter. The permit allowed COD discharge of 125 milligrams per liter and total chromium discharge of 0.50 milligrams per liter. Additionally, in accordance with the permit McWhorter requested permission to make the March 5 discharge and in so doing reported that the discharge would contain a COD level of 85 milligrams per liter and a chromium level of 0.008 milligrams per liter. Our review of the record convinces us that the above findings of the ECC were not manifestly erroneous.

The ECC found that on March 10, 1982, McWhorter discharged water with a COD level of 132.2 milligrams per liter in violation of its permit of 125 milligrams per liter. Additionally, McWhorter had requested permission to discharge waste water with a reported COD level of 44 milligrams per liter. This finding of the ECC is not manifestly erroneous.

McWhorter argues that the only showing of a substantial discharge was on May 18, [sic] 1982, and that showing was of a discharge of large amounts of halides. The halides consisted of both bromides and chlorides. McWhorter argues that the EAA regulations do not limit the amount of bromides that may be discharged and its permit gave permission to discharge 500 milligrams per liter of chlorides. Since there is no showing of the amount of each, it is argued that the evidence is not sufficient to support a finding of a violation of the EAA.

La.R.S. 30:1095 prohibits the discharge of any substance into the waters of the State without the appropriate permit or license required by regulations of the commission adopted pursuant to the Louisiana Water Control Law. We have not been cited to nor furnished with any regulation of the commission prohibiting the discharge of bromides without a permit. Therefore, McWhorter was not in violation of La.R.S. 30:1095 when it discharged bromides on May 18, 1982, without a discharge permit.

However, in determining the amount of chlorides actually discharged McWhorter admits that the testing procedure used for the intended elimination of bromides, which might interfere with getting a true reading of chlorides, neither conformed to the latest edition of Standard Methods for the Examination of Water and Wastewater nor to other DNR approved/EPA methods. The use of this testing procedure was therefore a violation of Section C-4 of Part I of McWhorter’s Water Discharge Permit.

The evidence presented to the ECC and reviewed by us supports the charge of excessive discharge on March 5 and March 10. Additionally, the evidence supports the charge of violation of the Water Discharge Permit in failing to use appropriate standards in determining the amount of prohibited chlorides discharged. Therefore, these assignments of error lack merit.

ASSIGNMENT OF ERROR NOS. EIGHT AND NINE:

McWhorter alleges that the charges of maintenance of inadequate records and failure to use proper equipment was not proved by the evidence presented.

Section C-5 of Part I of McWhorter’s Water Discharge Permit reads as follows:

5. Recording of Results
For each measurement or sample taken pursuant to the requirements of this permit, the permittee shall record the following information:
a. The exact place, date, and time of sampling;
b. The dates the analyses were performed;
c. The person(s) who performed the analyses;
d. The analytical techniques or methods used; and
e. The results of all required analyses.

As a result of an inspection performed on May 28, 1982, by an employee of the Department of Natural Resources the following violations were discovered:

1. The exact place, date and time of sample collection was not recorded on the laboratory sheets or permanent log book.
2. The time, date, and individual performing laboratory analyses were not recorded.
3. The approved analytical technique or methods used for analyses were not documented or recorded.
4. There was no refrigerator in the office to keep samples at the required holding temperature prior to the analyses or for the refrigeration of standards.
5. There was no record that the Mettler H-80 Scale had been tested for accuracy.
6. The toaster oven used for total suspended solids drying appeared less than adequate. A thermometer was placed inside the oven, however, the inspector could not read the thermometer without first opening the door.

The inspection results were introduced into evidence by stipulation. We note that McWhorter’s permit does not have a specific provision concerning equipment standards, nor has appellee cited any such provision. However, the failure to keep appropriate records was a violation of the permit. Therefore, these assignments of error lack merit.

ASSIGNMENT OF ERROR NOS. ONE, THREE AND TEN:

In these assignments of error McWhorter contests the constitutional validity and excessiveness of the penalty imposed by the ECC. McWhorter alleges that La.R.S. 30:1073(G)(3) permits the ECC to assess a civil penalty only in the event of noncompliance with a compliance order. Further, to allow a civil penalty to be assessed for a violation of any requirement of the chapter is unconstitutional because a penalty cannot be assessed for a prohibition which is too broad or too vague. It is further alleged that if a civil penalty is allowed under these circumstances, the penalty assessed herein was excessive because of McWhorter’s good faith in attempting to comply with the laws as promulgated.

The purpose of the compliance order found in La.R.S. 30:1073 is to require anyone who violates any section of the EAA to cease any additional unpermitted discharges. However, the violator is not relieved from liability for the original discharge.

Prior to its amendment in 1982, La.R.S. 30:1073(E)(1) provided as follows:

E. Penalties. (1) Except as otherwise provided by law, any person to whom a compliance order or a cease and desist order is issued pursuant to R.S. 30:1073(C), who fails to take corrective action within the time specified in said order or any person found by the commission or the assistant secretary to be in violation of any requirement of this Chapter, may be liable for a civil penalty, to be assessed by the commission or the assistant secretary, or court, of not more than twenty-five thousand dollars for each day of the continued noncomplianee or violation and the commission, in order to enforce the provisions of this Chapter, may suspend or revoke any permit, compliance order, license, or variance which had been issued to said person. (Emphasis added)

This section clearly allows a civil penalty to be assessed for the failure to take corrective action within the time specified in a compliance order or for a violation of any requirement of the Chapter.

McWhorter alleges this statutory scheme for assessment for civil penalties is unconstitutionally broad or vague. It does not allege what Constitution is violated, what section, or how it is unconstitutionally broad or vague. We find nothing in the statute so patently unconstitutional as to cause us to note a constitutional infirmity without being cited to one.

Lastly, McWhorter contends the ECC was arbitrary and capricious in imposing an excessive penalty. The ECC assessed McWhorter a $16,500 civil penalty and revoked the water discharge permit. There are five (5) violations for which McWhorter has been assessed a penalty. Each violation carries a maximum possible civil penalty of $25,000.00. The penalty assessed by the ECC under these circumstances was not excessive. Accordingly, these assignments of error lack merit.

For the foregoing reasons the Order of the Environmental Control Commission is affirmed. All costs of this appeal are taxed to McWhorter.

AFFIRMED.

      . Counsel for both parties argue in the briefs that the third discharge by McWhorter took place on or about March 18, 1982. The ECC in its findings of fact and conclusions of law found the third discharge to have taken place on or about May 18, 1982. The record reflects the finding of the ECC is correct.

      . We note that McWhorter incorrectly refers to La. Const, of 1974, arts. II and XXII in assignment of error number two. There is no art. XXII and art. II refers to Distribution of Powers. Apparently, McWhorter is referring to La. Const, of 1974, art. I, Secs. 2 and 22 which provide for due process and access to the courts.

      . Section 1095. Permits and licenses
      No person shall conduct any activity which results in the discharge of any substance into the waters of the state without the appropriate permit or license required under the regulations of the commission adopted pursuant to this Part.

      . 4. Test Procedures
      The procedures for the analysis of pollutants shall conform to the latest edition of Standard Methods for the Examination of Water and Wastewater or other permitting Agency approved/EPA approved methods.

      . (3) Whenever the commission, the assistant secretary or an authorized representative of the assistant secretary determines that a violation of any requirement of this Chapter has occurred or is about to occur, the commission, the assistant secretary or the authorized representative of-the assistant secretary shall either issue an order requiring compliance within a specified time period or the commission shall commence a civil action for appropriate relief, including a temporary or permanent injunction.


author: COLE, Judge.

text:
    Willie POPE, et al. v. CITY OF BATON ROUGE. Harry O. MILLS, Jr. and Ann C. Mills v. Willie POPE, et al.
    Nos. 83 CA 0572, 83 CA 0573.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      James B. Thompson, Baton Rouge, for Harry O. Mills, Jr. and Ann C. Mills.
    Richard Reed, Baton Rouge, for Willie Pope, Gwendolyn S. Pope and Aetna Cas. & Sur. Co.
    Caroline Norton, Asst. Parish Atty., Baton Rouge, for City of Baton Rouge.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The main issue here is whether or not contributory negligence is a defense in this strict liability case. We conclude it is. The facts giving rise to this litigation are as follows.

On April 12, 1978, at approximately 7:30 A.M., Gwendolyn Pope was traveling east on Main Street and Ann Mills was driving her van north on Eugene Street. As Mrs. Mills approached the intersection of the two streets, she noticed the traffic signal was not functioning. She stopped at the intersection and seconds later a car headed west on Main Street also stopped. This car (later identified as the Stevens vehicle) signaled to her to proceed. She looked to her left and saw the approaching Pope car almost a block away. Judging the speed and distance of the vehicle, Mrs. Mills believed she could cross the intersection before the Pope car reached it. When her car reached the middle of the intersection it was “broadsided” by the Pope auto. Both vehicles suffered rather extensive property damage and Mrs. Mills was injured. The Stevens car was damaged by the Mills van, but that matter is not the subject of this suit.

The car driven by Mrs. Pope and owned by her husband, Willie Pope, was insured by Aetna Casualty and Surety Company. Under the terms of the policy, Aetna paid the following amounts: $3,472.90 for damage to the Pope auto; $65.00 ambulance fee for Mrs. Pope; $932.84 for damages to the Stevens’ car; and $4,650.07 for property damage and medical expenses for Mrs. Mills. A conventional subrogation agreement was executed by Aetna and the Popes for the sum expended on the Pope car.

Willie Pope and Aetna filed suit against the City of Baton Rouge, alleging the accident was caused by the City’s non-operative traffic signal. Aetna sought to recover the sums it had paid out under the policy and Pope sought to recover his $100 deductible loss. Ann Mills and her husband, Harry Mills, filed suit against Willie Pope, Gwendolyn Pope, Aetna and the City. They alleged the accident was caused by the joint negligence of Mrs. Pope and the City and sought to recover for Mrs. Mills’ medical expenses, pain and suffering, permanent disability and loss of income. The suits were consolidated for trial.

The trial court found Gwendolyn Pope negligent and Ann Mills free of negligence. The court found the City liable based on both negligence and strict liability. Judgment was rendered as follows: In the suit by Willie Pope and Aetna against the City, judgment was rendered in favor of Aetna for $9,055.81 (for sums expended under the policy) and in favor of Willie Pope for $100 (the amount of the deductible). In the suit by the Mills against the Popes, Aetna and the City, judgment was rendered in favor of Mrs. Mills and against all defendants for $7,820.00 ($7,500.00 general damages and $320.00 lost wages) and in favor of Mr. Mills for $50.00 (the cost of a medical report). The City filed a suspensive appeal, as did Aetna and the Popes.

There is no dispute on appeal as to the amount of the awards. The Popes and Aetna contend the court erred in finding Mrs. Pope negligent and in failing to find Mrs. Mills negligent. The City also questions the court’s findings concerning Mrs. Mills and raises certain legal questions concerning the application of the strict liability theory.

We will first consider the negligence of Mrs. Pope. The trial court found her to be negligent in these aspects:

“[I]n failing to yield the right of way, failing to yield to the vehicle approaching from the right, failing to control her vehicle so as to avoid a collision, failing to see what she should have seen, i.e., vehicles stopping at the intersection, in driving too fast for the road conditions.”

We agree with the trial court that Mrs. Pope was negligent, primarily because she did in fact fail to see what she should have seen, i.e., the cars stopped at the intersection and the non-operative light. She testified it was raining the morning of the accident and she was driving at a “moderate speed.” She stated she had never been on Main Street before and was not aware of the traffic light until she was “right there up under it.” She said she did not notice the Mills vehicle until immediately before the collision and did not notice the Stevens ear until after the impact. We conclude a prudent person, driving in rainy conditions on an unfamiliar street, should have been attentive enough to observe the non-operative light, particularly since the Stevens vehicle and the Mills van were both stopped at the intersection. If Mrs. Pope had noticed the two stopped cars, she would have then questioned the existence of a traffic control device, thus increasing the possibility of its discovery.

We also agree with the trial court’s conclusion that Mrs. Pope was driving too fast for the conditions. Although there is no evidence of her exact speed, the fact that her small car (a Mercury Cougar) pushed the Mills vehicle (a large van) some 22 feet across the intersection indicates she was traveling rather fast.

We will next consider the alleged negligence of Mrs. Mills. She testified she noticed the traffic was not “flowing” and then observed the traffic light was “out.” She stopped at the intersection, ascertained that the Pope vehicle was a sufficient distance away so as to allow her time to clear the intersection, and proceeded to cross Main Street. Although her judgment about the time factor (based upon her appreciation of speed and distance) proved to be wrong, we find she acted reasonably and therefore will not disturb the trial court’s finding of fact as to her culpability.

As to the City’s liability, we agree with the trial court the City can be held under theories of either negligence of strict liability. There has been much jurisprudential confusion concerning the difference between these two theories. This matter was clarified in Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982), rehearing denied 1982. The court explained that in the typical negligence context the claimant must prove the owner (of the thing) knew or should have known about the defect or risk-creating condition. In strict liability cases, the claimant need not prove this knowledge; the owner is presumed to have known about the defect and the risks created thereby. The court explained as follows at page 497:

“Thus, while the basis for determining the existence of the duty (to take reasonable steps to prevent injury as a result of the thing’s presenting an unreasonable risk of harm) is different in C.C. Art. 2317 strict liability cases and in ordinary negligence cases, the duty which arises is the same.” (Emphasis added.)

Therefore, in the present case, it matters not which approach is used in reaching the City’s liability. Since a statement was introduced at trial, showing that the City Department of Public Works had been notified of the defective signal at 6:54 A.M. on the morning of the accident, we need not presume the defendant knew of the defect. The City, in fact, had actual knowledge of the dangerous condition yet failed to take the simple remedial step of dispatching a patrolman to the scene. The repairman for that area was busy repairing another signal; he arrived at the intersection at 8:21 A.M. and completed his work by 9:14 A.M. Considering this situation in terms of duty-risk analysis, we conclude the City had a duty to protect motorists from the dangers inherent in a non-operative traffic signal. They breached this duty by failing to immediately send out a patrolman to manually control the intersection. The accident which occurred, an in-tersectional collision, is precisely the type risk which is easily associated with the City’s duty to control the intersection. Therefore, we agree with the trial court the City is liable in this case.

From the Mills’ viewpoint, the City and Mrs. Pope are joint tort-feasors. The negligence of the City in not having a manual control at the intersection, and the negligence of Mrs. Pope in driving too fast under the prevailing conditions and not maintaining a proper lookout, were both substantial factors in bringing about the accident and resulting damages to Mr. and Mrs. Mills. Therefore, these parties are liable in solido.

The City argues that on the basis- of strict liability, Mrs. Pope’s negligence should be a bar to Aetna’s and Mr. Pope’s recovery. The Kent case did not directly answer the question of whether or not the same defenses are available to a defendant under the two theories of liability. This question was addressed recently in Buchanan v. Tangipahoa Parish Police Jury, 426 So.2d 720 (La.App. 1st Cir.1983). This court discussed the single difference in negligence cases and strict liability cases, as explained in Kent, and then stated at page 725 as follows:

“Because the ultimate duty which arises under either the strict liability or negligence theory is the same, there is no rational policy basis for precluding contributory negligence as a defense to one and not the other. The conduct of the claimant should be analysed the same in either situation.”

See also Dorry v. LaFleur, 399 So.2d 559 (La.1981) and Carpenter v. State Farm Fire and Casualty Co., 411 So.2d 1206 (La.App. 4th Cir.1982), writ denied, 415 So.2d 951 (La.1982).

In our view it is immaterial whether we term the conduct of Mrs. Pope “victim fault” or whether we term it “contributory negligence.” The causative fault involved in this case dictates the same result. Semantic refinement of conceptual theories only confuse further an already perplexing jurisprudence. Stability in our law, with its many advantages, validates the use of traditional defenses in tort actions. Weaving an intricate path among defenses perceived to emanate from La.Civ.Code arts. 2315, et seq., is unnecessary. See, e.g., Loescher v. Parr, 324 So.2d 441 (La.1975). A better approach would seem to be the use of the terms fault, force, and fortuitous event as defined by La.Civ.Code art. 3556 (13, 14 and 15).

We conclude Mrs. Pope’s negligence does, in fact, bar Aetna’s recovery (as an insurer, Aetna “stands in the shoes” of its insured) and therefore reverse that portion of the judgment which allowed Aet-na to recover from the City. As to the $100.00 granted to Mr. Pope, we affirm. There is no basis for imputing Mrs. Pope’s negligence to her husband. A driver’s negligence is not imputed to the owner of the vehicle. Farmer v. Hartford Accident & Indemnity Co., 368 So.2d 487 (La.App. 3d Cir.1979), writ denied, 371 So.2d 618 (La.1979). Also, a wife’s negligence is no longer imputed to her husband because the jurisprudential rule which allowed such imputation has been declared unconstitutional as an unreasonable sex-based discrimination. Lewis v. Till, 395 So.2d 737 (La.1981). Therefore, Mr. Pope’s recovery from the City is not barred.

For these reasons, the judgment of the trial court is reversed insofar as it granted recovery in favor of Aetna against the City. In all other aspects it is affirmed. Costs of this appeal are to be paid by Aetna.

REVERSED IN PART; AFFIRMED IN PART.

SAVOIE, J., concurs in the result.

      . This claim arose prior to the introduction of the concept of comparative negligence in Louisiana. LSA-C.C. art. 2323.

      . Mrs. Mills also testified at trial that she assumed the Pope car would stop at the intersection, since all other cars were doing so.

      . The 165.00 ambulance fee paid by Aetna for Mrs. Pope was not allowed.

      . The City’s liability originates under LSA-C.C. art. 2317 in that art. 2317 addresses damage occasioned by a thing in one’s custody. To that extent this is termed a "strict liability” case, although we consider the designation a misnomer.


author: COVINGTON, Judge.

text:
    The TRAVELERS INDEMNITY COMPANY v. EXXON PIPELINE COMPANY, et al.
    No. 83 CA 0583.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.
    Writ Denied June 15, 1984.

      W. Arthur Abercrombie, Baton Rouge, for plaintiff-defendant-in-reconvention-ap-pellant Travelers Indem. Co.
    John J. Hainkel, New Orleans, for defendant; third party plaintiff; plaintiff-in-reconvention-appellee M.P. Evans, Jr.
    Gary A. Bezet, Baton Rouge, for defendant-third party plaintiff; plaintiff-in-recon-vention-appellee Exxon Pipeline Co.
    Gordon R. Crawford, Napoleonville, for third party defendant; defendant-in-recon-vention-appellee Ascension Parish Police Jury.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an appeal by plaintiff, The Travelers Indemnity Company, from a judgment dismissing its suit against the defendant, Exxon Pipeline Company. Exxon answered the appeal asserting the correctness of the trial court’s judgment; third-party defendant, Ascension Parish Police Jury, answered plaintiff’s appeal and also urged the correctness of the trial court’s judgment. Both Exxon and the Police Jury raised alternative issues in the event of reversal of the judgment by this Court.

This is a damage suit arising out of an explosion that destroyed a bulldozer belonging to the Ascension Parish Police Jury. On July 10, 1979, Alexis, the bulldozer operator and employee of the Police Jury, was burying debris from the dredging of the Hackett Canal in Ascension Parish when he struck and ruptured an underground gas pipeline owned by Exxon Pipeline Company. The escaping gas caused an explosion which destroyed the bulldozer. Travelers, the insurer, paid the Police Jury for the damage to the bulldozer; and, as subrogee, brought this suit under the theory of strict liability against Exxon and the land owner to recover the amount paid. Exxon reconvened against Travelers for its loss of gas from the ruptured pipeline and for the cost of repairing the pipeline. Exxon also brought a third-party action against the Police Jury as the employer of the bulldozer operator.

The trial court found that Exxon’s pipeline was defective because there were no signs or markers to indicate its location. The lower court additionally found that the unmarked gas pipeline created an unreasonable risk of harm in that Exxon should have anticipated that a canal of the size of the Hackett Canal would have to be cleared and widened from time to time. Hence, Exxon failed to fulfill its duty to protect others from the risk of harm resulting from the defective condition of the thing within its custody and control. LSA-C.C. art. 2317.

After determining that Exxon had breached its duty as the owner-custodian of the pipeline and that this breach of duty was a cause of the accident, the court considered the defenses available to Exxon. The trial court found that the Police Jury, Travelers’ subrogor, was guilty of negligence. This negligence consisted of the Police Jury’s failure to inform its employee of the location of the pipeline when the Police Jury had maps showing that location. The court also found that the land owner'had informed the bulldozer operator of the location of the pipeline several weeks prior to the accident, so that he was negligent in striking the pipeline under the circumstances. Finding that the bulldozer operator had actual knowledge of the location of the pipeline and that it was the responsibility of the Police Jury to inform its employee of the location of the pipeline, the trial court concluded that contributory negligence or victim fault on the part of the plaintiff’s insured barred recovery.

On appeal, Travelers contends that since Exxon was strictly liable as the owner-custodian of the pipeline under LSA-C.C. art. 2317, the trial judge erred in allowing Exxon’s defense of victim fault or contributory negligence so as to preclude Travelers’ recovery of damages.

The concept of contributory negligence or victim fault in strict liability cases is stated in Dorry v. LaFleur, 399 So.2d 559, 560 (La.1981):

Where a plaintiff’s negligence contributes to his own damage, there is no reason to ignore his fault in every case simply because the defendant’s liability is based on some legal fault other than negligence. Quite to the contrary, the plaintiff’s negligence should carry more, not less, consequence when the defendant is strictly liable, but less culpable than the plaintiff.

As further stated in Dorry: “There is no policy reason to deny these strictly liable defendants the defense of contributory negligence.” 399 So.2d at 561.

To the same effect is Buchanan v. Tangipahoa Parish Police Jury, 426 So.2d 720, 725 (La.App. 1st Cir.1983), wherein this Court said:

Because the ultimate duty which arises under either the strict liability or negligence theory is the same, there is no rational policy basis for precluding contributory negligence as a defense to one and not the other. The conduct of the .claimant should be analysed the same in either situation.

On the question of whether contributory negligence is available as a defense to the strictly liable defendant, this Court in Pope v. City of Baton Rouge, 449 So.2d 1070 (La.App. 1st Cir.1984), observed:

In our view it is immaterial whether we term the conduct of Mrs. Pope “victim fault” or whether we term it “contributory negligence.” The causative fault involved in this case dictates the same result. Semantic refinement of conceptual theories only confuse further an already perplexing jurisprudence. Stability in our law, with its many advantages, validates the use of traditional defenses in tort actions. Weaving an intricate path among defenses perceived to emanate from La.Civ.Code arts. 2315, et seq., is unnécessary. See, e.g., Loescher v. Parr, 324 So.2d 441 (La.1975). A better approach would seem to be the use of the terms fault, force, and fortuitous event as defined by La.Civ.Code art. 3556 (13, 14 and 15).

We find that the “causative fault” or contributory negligence of the Police Jury and of the bulldozer operator precludes the recovery of damages by the Police Jury’s subrogee, The Travelers Indemnity Company.

For the reasons assigned, the judgment of the trial court is affirmed at the appellant’s costs.

AFFIRMED.

SAVOIE, J., concurs in the result.

      . Since we affirm the trial court’s judgment, it is not necessary that we discuss these alternative issues.

      . The land owner, M.P. Evans, Jr., was, by joint motion of plaintiff and Evans, dismissed as • a defendant, and his reconventional demand and his third party claims were also dismissed. In said motion, plaintiff reserved its rights against Exxon.

      . Exxon’s claims were denied.


author: REDMANN, Chief Judge.

text:
    GAMMON ENTERPRISES, INC. v. VANGUARD INVESTMENT, INC. et al.
    No. CA 1228.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Rehearing Denied May 25, 1984.
    M. Arnaud Pilié, Pilié & Pilié, New Orleans, for plaintiff.
    Anthony M. DiLeo, Judy Y. Barrasso, Stone, Pigman, Walther, Wittman & Hutchinson, New Orleans, for defendant.
    Before REDMANN, C.J., and GARRISON and WARD, JJ.
   REDMANN, Chief Judge.

Plaintiff appeals from the maintaining of an exception of prematurity to its suit on a written contract of compromise. The exception argued that an unwritten suspen-sive condition, provable by parol evidence, was not fulfilled and therefore the suit was premature.

We reverse. Although parol may be admitted to prove a non-integrated side-agreement, or to show fraud or mutual mistake, nonfulfillment of a suspensive condition may not be the basis for the dilatory exception ground of prematurity.

If indeed the contract must be reformed, on the basis of parol, to contradict its terms because of mutual mistake, and it therefore should contain the suspensive condition alleged, then the suit would be premature in the sense of La.C.C.P. 423, but not for purposes of the dilatory exception, C.C.P. 926. Article 423’s Comment (b), 2d para., explains:

“If the obligation is dependent upon the suspensive condition, the right to enforce it does not come into existence until the occurrence or the performance of the condition, which may never happen; therefore, under the 1870 Code this objection was raised through an exception of no cause of action. H.B. Claflin Co. v. Feibleman [44 La.Ann. 518, 10 So. 862 (1892)]; Halbert v. Klauer Mfg. Co., [181 So. 75 (La.App. 2 Cir.1938) ]. Under this [1960] Code, this type of prematurity may be raised through the peremptory exception.”

Halbert, 181 So. at 79, further explains:

“The plea of prematurity urged by defendant is not dilatory in nature and governed by the quoted codal provision. Dilatory exceptions are such as do not tend to defeat the action but only to retard its progress_ Defendant’s objection purposes to destroy or defeat the instant action because of the nonoccurrence of the event on which the suspensive condition in question hinges. The matter of retarding its progress is not involved.
“... If ... the obligation depends upon the happening of an uncertain event, and objection is urged to its enforcement or execution because of the nonoccurrence of that event, the resulting issue of prematurity properly belongs to the merits of the case.”

Reversed at defendants’ cost.


author: KLEES, Judge.

text:
    STATE of Louisiana v. Lawrence P. MARALLO.
    No. KA-1332.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Rehearing Denied May 25, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee State of La.
    Carole H. Burstein, New Orleans, for defendant-appellant Lawrence Paul Maral-lo.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   KLEES, Judge.

I. STATEMENT OF THE CASE

The defendant and two companions, Gloria Snow and Reggie Marallo, were arrested and charged with distribution of Hydro-morphone (Dilaudid), a violation of LSA-R.S. 40:967(A)(1). Marallo pled not guilty at his arraignment on November 4, 1982. Following a one-day judge trial on February 17, 1983, the defendant was found guilty as charged. Marallo was sentenced to serve ten years at hard labor.

II. STATEMENT OF THE FACTS

On March 15, 1982 at approximately 2:40 p.m., Officer Childress of the New Orleans Police Department, D.E.A. Agent Maas and Robert Fragale proceeded to a lounge in New Orleans. Maas and Fragale entered the lounge while Childress watched from her patrol car one block away. Maas testified that Gloria Snow approached him and asked if he or Fragale wanted to buy “D’s”, a street name for Dilaudid, to which Maas answered yes. Snow then walked to a pay telephone in the lounge where she called the defendant, Lawrence Marallo. Fragale spoke with Marallo and informed him that they wished to purchase four Dilaudid pills.

At approximately 3:20 p.m., Reggie and Paul Marallo entered the lounge and sat with Maas and Fragale. The defendant reached into his pocket and handed four yellow tablets to Fragale who in turn handed them to Maas. Maas gave the defendant $180.00 for the four pills and inquired as to the availability of drugs the next day. Reggie Marallo informed him that he would have a supply the following day and that Maas could make subsequent purchases. The defendant also gave Maas a telephone number where he could be contacted. Maas left the lounge and gave the four tablets to Officer Childress.

The pills were subsequently tested and found to contain Dilaudid. The defendant was arrested and charged with this present offense.

Gloria Snow took the stand and testified that Maas and Fragale asked her where they could find the Marallo brothers. Snow stated that she did not approach Maas or Fragale and that no drug transaction took place between the defendants and Maas or Fragale.

The defendant testified in his own defense and admitted selling the pills but denied that he made any profit from the sale or that he was a pusher. The defendant’s mother testified that her son was a good boy who had some problems but he was not a pusher.

Assignment of Error No. I

By this assignment, the defendant contends that the trial court erred by not permitting a hearing on the defendant’s Motion to Suppress. The defendant also argues that the police should be forced to obtain a search warrant prior to conducting undercover activities.

The defendant’s arguments are without merit. First, there was no evidence seized from the defendant and no search of the defendant was conducted. Accordingly, the trial court’s ruling is not in error. Second, the law does not require search warrants prior to conducting undercover activities. Undercover operations are an integral weapon in the police department’s arsenal against crime and to require a warrant before such investigations would render this important tool of law enforcement ineffective.

Assignment of Error II ■

By this assignment, the defendant argues that the trial court erred in not consolidating the two charges pending against him.

The defendant was charged in this present case with one count of distribution of Dilaudid and nothing in the record indicates that the defendant was previously tried on a separate charge arising from this same transaction. If the defendant has subsequently been charged with a second offense, he may raise the issue of double jeopardy in that proceeding. (But see State v. Buckley, 344 So.2d 980 (La.1977)). Again, however, in this present case, Marallo was charged, tried and convicted on only one offense: distribution of Dilaudid.

This assignment is without merit.

Assignment of Error III

By this assignment, the defendant contends that the trial court imposed an unconstitutionally excessive sentence. The defendant argues that since Marallo was not a “pusher” but only an addict, he should not be punished as a “pusher”.

Under LSA-R.S. 40:967(A)(1), a person convicted under this statute can be sentenced to five to thirty years. Marallo was sentenced to serve ten years. This sentence can hardly be deemed severe, particularly considering the defendants previous felony convictions. See State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cain, 382 So.2d 936 (La.1980). We also note that the defendant could have been billed by the State as a multiple offender, but was not.

The defendant’s argument that an “addict” and a “pusher” should not be treated equally under the law is best addressed to the legislature. We note that the penalty is more severe for those persons convicted of distribution [40:967(B)(2) ] than for those convicted of possession [40:967(C)(2)], defendant was convicted of distribution which carries the harsher sentence.

This assignment is without merit.

Assignment of Error IV

By this assignment, the defendant maintains that the trial court erred by not compelling the State to produce an essential witness to the prosecution, the informer, Robert Fragale.

The defendant argues that Fra-gale’s testimony was necessary for a possible defense that may have been raised. However, the defendant did not issue a subpoena for Fragale. It is well settled that the defense is responsible for issuing its own subpoenas to obtain witnesses and cannot rely on the State to do so. State v. Michael Lee Staab, 430 So.2d 54 (La.1983), (Unpublished Appendix). The trial court denied defendant’s motion for a new trial stating “the role of Robert Fragale in this case as informer was well known to the defense and with diligence Fragale could have been subpoenaed”. Additionally, DEA Agent Maas was present with Fra-gale during the entire transaction and testified in detail as to the events which transpired.

This assignment is without merit.

Accordingly, the defendant’s conviction and sentence is hereby affirmed.

AFFIRMED.


author: AUGUSTINE, Judge. GARRISON, Judge,

text:
    Paulette CHARBONNET, M.N. Washington, Larry Williams and L.L. Coignet, Jr. v. Joseph R. GERACE, Administrator, Louisiana Department of Employment Security and Federal Aviation Administration, South-West Region.
    No. CA-0822.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Dissenting Opinion April 25, 1984.
    Writ Granted June 1, 1984.
    Leonard A. Washofsky, Hess & Washof-sky, P.C., New Orleans, for plaintiffs-appellants.
    William F. Baity, Asst. U.S. Atty., New Orleans, James A. McGraw, Eddie G. Crawford, Denise A. Nagel, Baton Rouge, for defendants-appellees.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   AUGUSTINE, Judge.

The paramount issue in this case is whether a federal employee’s participation in an illegal strike constitutes “misconduct”, thus disqualifying that employee for unemployment insurance benefits under La.R.S. 23:1601(2).

The appellants — Paulette Charbonnet, M.N. Washington, Larry Williams, and L.L. Coignet, Jr. — are former air traffic controllers employed by the Federal Aviation Administration, an agency of the United States of America. On August 3, 1981, the Professional Air Traffic Controllers Organization (PATCO) began a nationwide strike against the F.A.A. By order of the President of the United States, these striking employees were instructed to return to work within forty-eight hours or face dismissal. Appellants were among the many PATCO members who refused to comply with the president’s order and were subsequently fired.

Appellants thereafter sought unemployment benefits from the Louisiana Department of Employment Security. The administrator denied their claims, finding that the claimants had been discharged for misconduct, namely, participating in an illegal strike against the United States Government.

The appellants sought further review, first, before the Appeals Referee, then the Board of Review, and finally, the Civil District Court for the Parish of Orleans. At every level of review, the administrator’s finding of misconduct was affirmed. The case is now before this court for our consideration of the legal issue posed at the outset of this opinion.

Appellants’ argument for reversal of the trial court’s judgment proceeds along the following lines:

The claimants contend, first, that they were fired because of their participation in a “labor dispute”, and that their application for benefits is therefore governed by La.R.S. 23:1601(4), which provides—

“An individual shall be disqualified for benefits:
(4) For any week with respect to which the administrator finds that his unemployment is due to a labor dispute ...”

Appellants maintain, further, that National Gypsum Co. v. Administrator, La. Dept. of Employment Security, 313 So.2d 230 (La.1975) stands for the proposition that when an employer refuses to allow its employees to return to work and begins hiring replacements, the labor dispute is no longer in active progress and, thereafter, those employees who are “locked out” are entitled to unemployment benefits. Appellants argue that the labor dispute in which they were involved ended on August 6, 1981, when the F.A.A. began firing strikers and hiring replacements. They contend that the F.A.A.’s subsequent refusal to rehire them constituted a “lock out”, and that under National Gypsum, supra, they are entitled to unemployment compensation.

We think, however, that National Gypsum is distinguishable from the case at bar in several important respects. There, the employer’s undisputed lock-out gave rise to this question: Is the Unemployment Compensation Act intended to enforce a lockout by the employer by denying unemployment benefits to employees who are available for work, but who are denied it by their employer?

Answering in the negative, the Court held that unemployment due to a lock-out by the employer is not caused by “a labor dispute which is in active progress ”. La. R.S. 23:1601(4). Accordingly, the Court also held that lock-out employees are entitled to unemployment compensation.

In reaching that conclusion, the Court emphasized that the plaintiff employees were “unable to work through no fault of their own”, and that a lock-out is an aggressive form of economic coercion which should not be encouraged. The Court also observed that “a labor dispute is (not) in active progress, insofar as disqualification for unemployment benefits is concerned, when the employees are exercising their legal right through peaceful negotiation to bargain for what they deem to be better working conditions.” Id at 233. (Emphasis added).

National Gypsum cannot be regarded as controlling in this matter. There the Court was concerned with the conduct of a private employer, against whom Louisiana law affords the right to strike; here, the employer is the federal government, whose appointed representatives are obligated to enforce the laws of this country. Those laws expressly provide that no individual may hold a position in the Government of the United States if he participates in a strike against the federal government. 5 U.S.C. § 7311. Violation of this provision is punishable as a felony. 18 U.S.C. § 1918. In giving effect to these federal statutes, the F.A.A. cannot be said to have engaged in the sort of economic coercion which the National Gypsum Court disparaged — it cannot be “coercive” for government to compel an individual to do that which the law requires of him. Nor can it be said of these appellants (as it was said of the National Gypsum plaintiffs) that they were “unable to work through no fault of their own”, or that appellants’ unemployment was the result of their exercise of a legal right. In short, whereas the National Gypsum plaintiffs were victims of a lock-out, these appellants were fired for violating federal law.

Claimants nevertheless urge this court to decide this case according to Louisiana law rather than the cited federal statutes. They contend that striking, in itself, is not misconduct, and that the right to strike is specifically protected. La.R.S. 23:841.

Such an argument creates the impression that strikes are always and everywhere protected in Louisiana. This is not an accurate statement of the law, however, for as we held in City of New Orleans v. Police Association of Louisiana, 369 So.2d 188 (La.App. 4th Cir.1979), at least some public employee strikes (for example, those conducted by policemen) are illegal and therefore subject to injunction, notwithstanding La.R.S. 23:841, supra. In other states, every court that has considered the question has decided that, in the absence of a statute governing public employee strikes, public employees have no right to strike or engage in work stoppages. Id. at 188. See also, United Federation of Postal Clerks v. Blount, 325 F.Supp. 879 (D.D.C.1971), aff’d., 404 U.S. 802, 92 S.Ct. 80, 30 L.Ed.2d 38 (1971).

But regardless of Louisiana’s treatment of strikes by public employees, we cannot simply ignore the fact that the relationship between the claimants and the F.A.A. was governed by various rules, one of which makes it a felony for employees to participate in a strike. 18 U.S.C. § 1918. Thus, although it is necessary to consult Louisiana law to determine the grounds for disqualification for benefits, we cannot avoid looking to federal law to determine whether those grounds exist in this case.

Concerning the grounds for disqualification, La.R.S. 23:1601(2) provides that an individual shall be disqualified for benefits if he has been discharged for misconduct connected with his employment.

Louisiana courts consistently have defined “misconduct” under La.R.S. 23:1601(2) as “... an act of willful or wanton disregard of the employer’s interest; a deliberate violation of the employer’s rules; or a disregard of standards of behavior which the employer has a right to expect of his employee.” Dorsey v. Administrator, Louisiana Dept. of Employment Security, 353 So.2d 363 (La.App. 1st Cir.1977); Atkins v. Doyal, 274 So.2d 438 (La.App. 1st Cir.1973); Bowman v. State of Louisiana, Office of Employment Security, 403 So.2d 825 (La.App. 2d Cir.1981).

Given the foregoing definition, it cannot be seriously doubted that the term “misconduct” is broad enough to include those acts under consideration. Appellants have deliberately violated an employer’s rule, namely 5 U.S.C. § 7311(3). By providing that such activity is punishable as a felony, Congress undoubtedly meant to impress upon federal employees its view that strikes against the Government constitute a willful disregard of the employer’s interest. Both Congress and the appellants’ direct employer, the F.A.A., had the right to expect that appellants would obey the laws of this country governing their employment. In a word, appellants have been guilty of “misconduct” in connection with their employment. They are therefore disqualified from receiving unemployment benefits under La.R.S. 23:1601(2).

For the reasons assigned, the judgment of the district court is affirmed.

AFFIRMED.

GARRISON, J., dissents with reasons.

GARRISON, Judge,

dissenting.

In my judgment, the fact that the strike in which claimants participated constitutes misconduct within the purview of a federal statute does not necessarily make it misconduct with regard to the law of Louisiana. Federal statutes do not necessarily constitute an extension of nor substitution for Louisiana law. I find the National Gypsum case, cited by appellants, to be controlling. In my regard, they have indeed been “locked out” by the F.A.A. and they are entitled to unemployment compensation under Louisiana law.

      . La.R.S. 23:1601(2) provides, in part:
      An individual shall be disqualified for benefits:

      (2) If the administrator finds that he has been discharged ... for misconduct connected with his employment.

      . 5 U.S.C. § 7311 provides:

        An individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he—
      (3) participates in a strike, or asserts the right to strike, against the Government of the United States or the government of the District of Columbia.

      . La.R.S. 23:821 defines the term “labor dispute" as follows:
      The term “labor dispute” includes any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, or concerning employment relations, or any other controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the proximate relation of employer and employee.

      . La.R.S. 23:841 provides, in part:
      No court shall issue any restraining order or temporary or permanent injunction which in specific or general terms prohibits any person or persons from doing, whether singly or in concert, any of the following acts:
      (1) Ceasing or refusing to perform any work to remain in any relation of employment regardless of any promise, undertaking, contract or agreement to do such work or to remain in such employment;


author: LOBRANO, Judge.

text:
    Ricard ALEXIS v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. CA-1537.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Rehearing Denied May 25, 1984.

      Charlton B. Ogden, II, New Orleans, for defendant/appellant.
    Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff/appellee.
    Before LOBRANO, CIACCIO and WARD, JJ.
   LOBRANO, Judge.

The lower court awarded plaintiff, Ricard Alexis, total and permanent workmen’s compensation benefits under the “odd lot” doctrine. Appellant, New Orleans Public Service, Inc. (NOPSI) perfects this appeal arguing that the trial court was in error in applying that doctrine, as well as failing to give more credibility to the treating physician’s testimony.

The facts of the injury are undisputed. Alexis was employed by NOPSI on January 10, 1982, as a utility man earning a gross pay of $223.80 per week. His job duties revolve around the maintenance of NOPSI buses, including removal of trash from their interior, changing the oil, fixing flats, cleaning of the buses and driving them through the service lanes. The first week at work Alexis attended a training program. The next week he began actual work when, on January 28, 1982, as he was changing the oil on one bus, another rolled forward crushing his legs between the bumpers of the two.

As a result of that injury, Alexis was paid his normal weekly wages until March 14, 1982, at which time he was placed on compensation benefits at the rate of $150.00 per week until July 11, 1982. The rate was then raised to $160.00 per week because of a rate change in NOPSI wages. Compensation benefits were thereafter paid through August 18, 1982. No further payments have been made by NOPSI.

We first note that the trial court, as stated in its reasons for judgment, found the following medical facts.

“Mr. Alexis was initially seen by Compa.ny Physicians who were unable to cure him and was referred to Dr. George Carey, who initiated conservative treatment to his left leg and for an infected hemoto-ma below the knee. He was hospitalized and treated with antibotics without success. On the 24th of May, 1982, he was readmitted and his infected bursa was removed. Dr. Carey discharged him July 30, 1982, to return to unrestricted work, despite his complaints of leg pain and hypersensitivity over the scar site, ¼ inch atrophy, numbness of his leg, and a squatting restriction. This physician assigned him a permanent 5% partial disability.
Dr. Stuart Phillips, an orthopod, examined the plaintiff who was complaining of pain on the medical side of the knee and of numbness below and to the outside of the knee. He opined that he had a severing of neroma of the infrapatella branch of the saphenous nerve resulting from the trauma or surgery (each of which is compensable) which caused him the loss of sensation and pain in the leg. A subsequent thermogram, examination and review of Dr. Carey’s records confirmed his opinion.
Dr. Phillips assigned the plaintiff a permanent 25% impairment of function of the left leg or I2V2 per cent bodily disability, and restricted his occupations to those that do not involve kneeling, running, climbing, squatting or those exposed to cold temperatures. He would not certify him to return to his former employment at New Orleans Public Service, Inc.
Both orthopods agreed that the plaintiff had paid over the incisional cite, numbness in the leg and atrophy of the left calf and that kneeling, squatting and stooping would accelerate his pain. Further, weather changes would influence his degree of pain.
The Court accepts Dr. Phillips testimony of disability as the most reasonable and credible as to plaintiffs disability. Unquestionably, plaintiffs continued complaints of substantial pain and numbness in his leg are justified and confirmed by both physicians.”

The trial court accepted Dr. Phillips’ testimony as the most reliable with respect to plaintiffs disability. Once the trial court in a workmen’s compensation case has made findings as to disability and lengths thereof, such determinations are entitled to great weight and are not to be disturbed except upon a showing of manifest error. Smith v. Orleans Parish School Board, 436 So.2d 586 (La.App. 4th Cir.1983). NOPSI argues that since Dr. Carey was the physician who performed the surgery his opinion of a 5% disability should have been given greater weight than the opinion of Dr. Phillips who assigned a 25% disability. Although our jurisprudence is well established that the opinion of the treating physician is to be given greater weight than that of a specialist who has seen the patient briefly, we do not feel that is the situation in the instant case. Alexis was referred to Dr. Carey by NOPSI’s physicians when they could find nothing wrong. Dr. Carey, 6 months after the accident, and after conservative treatment, decided on surgery. Subsequent to the surgery, Alexis was still in pain and discomfort, and thus was referred to Dr. Phillips for further evaluation and treatment. His testimony, and medical reports are clear that he did more than merely see the patient briefly for evaluation. We therefore find no merit in NOPSI’s argument on this point. In fact, we note that the opinions of both doctors are very similar except with the assignment of a percentage of disability.

NOPSI also argues that the trial court erred in applying the odd lot doctrine. Under that doctrine a compensation claimant is considered totally disabled if his injury makes him an “odd lot” in the labor market, that is one capable of obtaining employment periodically, but one whose services are so limited in quality, dependability or quantity that a reasonably stable market for his services does not exist. Lattin v. Hica Corp., 395 So.2d 690 (La.1981); Jackson v. Maloney Trucking and Storage Co., 424 So.2d 1037 (La.App. 4th Cir.1982). Substantial pain can prevent gainful employment for wages so as to entitle an injured worker to total disability under the odd lot doctrine. Wilson v. Ebasco Services, 393 So.2d 1248 (La.1981).

Alexis proved to the satisfaction of the trial court that he would be unable to return to his former job without incurring substantial pain. His 25% permanent impairment of the left leg prevented his kneeling, climbing, squatting or being exposed to cold temperatures. We find no error in this conclusion. It was then incumbent upon NOPSI to prove that there is suitable work in the job market available to Alexis, given his physical impairment, training and education. As this Court stated in Lee v. Pratt-Farnsworth Construction Co., 397 So.2d 2 (La.App. 4th Cir. 1981):

“Once the employee establishes that he is working in substantial pain and he further establishes a prima facie case that because of his physical impairment and other factors such as mental capacity, education and training, a reasonable stable job market does not exist for his services, the burden shifts to the employer to rebut the prima facie case with evidence that some form of suitable work is available as a practical matter to that employee.” id at ⅛.

We agree with the trial court that NOPSI failed to introduce any evidence whatsoever to prove that a job market existed for Alexis in the metropolitan New Orleans area. Alexis has expressed an interest in seeking further education and rehabilitation. If his further education and rehabilitation or his physical condition improves to a point where he is able to find regular employment, it may be appropriate for NOPSI to seek modification of this judgment under La.R.S. 23:1331.

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

AFFIRMED.

      . See, O’Donovan v. Bankers Life and Casualty Company, 305 So.2d 643 (La.App. 3rd Cir.1974), and the cases cited therein.