author: STOKER, Judge. PER CURIAM:

text:
    Linda PARKS, Plaintiff-Appellee, v. LOUISIANA HEALTH CARE ASSOCIATION, et al., Defendants-Appellants.
    No. 83-75.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1983.
    Rehearings Denied Aug. 31, 1983.
    Writ Denied Nov. 18,1983.

      Gist, Methvin, Hughes & Munsterman, Victor H. Sooter and Steven W. Cook, Alexandria, for defendants-appellants.
    James T. Lee, Marksville, for plaintiff-ap-pellee.
    Before DOMENGEAUX, CUTRER and STOKER, JJ.
   STOKER, Judge.

This is a suit for worker’s compensation benefits in which the plaintiff, Linda Parks, was awarded benefits at the maximum rate of $89.33 per week for temporary total disability from December 5, 1981 to May 23, 1982, and the minimum compensation of $26.80 per week for permanent partial disability for 450 weeks.

Defendant, Colonial Nursing Home, appeals claiming that benefits for temporary total disability should have been deemed terminated as of February 12, 1982, and that any benefits awarded after that date should have been made on the basis of a schedule loss of a finger rather than for partial disability. Plaintiff answers the appeal asserting that she is totally and permanently disabled. In the alternative, she asserts that the amount of compensation for partial disability should have been at the rate of $89.33 per week. She also reasserts her demands for penalties and attorney’s fees.

In the original petition plaintiff named as defendants Louisiana Health Care Association and Colonial Nursing Home, Mrs. Parks’ employer. Colonial is a member of the Association and has its worker’s compensation insurance with Ranger Insurance Company. Although Ranger is a partnership of members of the Association, it is a separate entity. The plaintiff did not appeal a trial court judgment dismissing Louisiana Health Care Association as a defendant, and that judgment is final. Plaintiff’s counsel attempted to amend the petition the day of trial and add Ranger as a defendant. The trial judge refused to allow the amendment, and this ruling has not been appealed. Colonial is the only defendant involved in this appeal.

For reasons set out below, we affirm the award of benefits for temporary total disability but reverse the award for partial disability. In place of the latter we award benefits for a schedule loss.

FACTS

On December 5, 1981, while employed as a nurse’s aide at Colonial Nursing Home, Mrs. Parks fractured a bone in the end of her right middle finger when she caught it between a door and an iron bed frame. A splint was applied and pain medication was prescribed by Dr. Zerangue in the emergency room where she sought treatment.

Mrs. Parks was seen by Dr. Bryan McCann throughout the month of December. His report dated January 8,1982 indicates that Mrs. Parks suffered severe pain during that time and an attempt by her to return to work on December 14 was unsuccessful. Dr. McCann also reported a prior break to the same bone which Mrs. Parks stated had completely healed at the time of this accident. This report is the only evidence concerning Dr. McCann’s treatment of Mrs. Parks. It covers a period from December 7 until December 30, during which time the broken finger remained in a splint and Mrs. Parks was continued on pain medication.

Dr. L.J. Mayeux, a family practitioner, testified at trial. He first saw Mrs. Parks on December 15, 1981, at which time she was not able to work. Dr. Mayeux did not see her again until August 10, 1982, at which time she was complaining of pain in all joints of her right middle finger and in her forearm. At that time Dr. Mayeux testified that Mrs. Parks was beginning to have signs of tendonitis and bursitis in her arm and he referred her to Dr. Joe Morgan, an orthopedic surgeon who specializes in hand injuries. On August 10 and subsequent visits of August 20 and September 10, Dr. Mayeux did not believe that Mrs. Parks could return to work. On September 10, he recommended that she return to Dr. Morgan and consider surgery as an alternative.

Dr. Morgan who saw Mrs. Parks on one occasion (August 13,1982) on referral from Dr. Mayeux, testified by deposition that he would not disqualify her from working because of the injury to her finger. His diagnosis was that Mrs. Parks suffered from traumatic arthritis of the injured joint of her right middle finger and tendonitis of her right elbow. Dr. Morgan testified that he could not relate the elbow problem to the finger injury. He assigned a disability or physical impairment rating to Mrs. Parks’ finger of 40% and to the hand of 6%. ' Dr. Morgan fully discussed two surgical procedures which could be performed on Mrs. Parks to relieve the pain in her finger. Neither of these operations would have any effect on the physical impairment.

The treating physician in this case is Dr. P.M. Davis, Jr., an orthopedic surgeon, whose deposition was admitted into evidence at trial. He first saw Mrs. Parks on December 18, 1981, at which time he felt that Mrs. Parks could not work. On January 29,1982, after being informed that Mrs. Parks worked as a nurse’s aide, Dr. Davis recommended that she return to work in two weeks. He also advised that she should continue to use the splint on her finger at all times. On February 12, Dr. Davis recommended that Mrs. Parks begin removing the splint for short periods of time, but that she could return to work wearing the splint during working hours. At her next visit on February 26, Dr. Davis recommended that she continue to use the splint while working for the next four to six weeks. Despite the doctor’s recommendations during this time, Mrs. Parks appears to have.made no effort to return to work.

On April 29, 1982, Dr. Davis examined Mrs. Parks and found that she was using her finger fully. At this time Mrs. Parks was complaining of a mild pain in her forearm which Dr. Davis did not relate to the finger injury. He did not see Mrs. Parks again until August 2 at which time he stated that she had definitely developed tendonitis in her injured finger.

Dr. Davis testified further that Mrs. Parks could continue to work although she should be careful. She may still have pain but should be able to work with it. Dr. Davis assigned a disability rating of 15% to the finger and declined to assign a rating to the hand.

Payment of benefits to Mrs. Parks was terminated on May 23,1982, on the basis of a report from Dr. Davis dated May 25,1982. This report was based on Dr. Davis’s April 29 examination.

DURATION OF TOTAL DISABILITY

Mrs. Parks claims to be totally and permanently disabled on the basis that she cannot return to work without suffering substantial pain. Colonial asserts that Mrs. Parks was only temporarily totally disabled from the time of the accident until February 12, 1982, the date Dr. Davis first said she could return to work.

A worker who is unable to return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La. 1981). In the recent case of Culp v. Belden Corporation, 432 So.2d 847, (La.1983), the Louisiana Supreme Court stated:

“... where pain is the linchpin to make out a prima facie case for a worker’s classification in the odd lot category, the pain accompanying routine physical tasks and attempts to return to work must be substantial, serious, intense and/or severe.”

Mrs. Parks’ only effort to return to work was made on December 14, 1981, nine days after the accident. This was before any doctor recommended that she return to work. At trial she testified that she did not feel she could perform her duties as a nurse’s aide without some pain. She did not specify what duties would be particularly difficult nor was there any evidence that she had difficulty performing routine tasks at home.

[2,3] Of the medical experts, only Dr. Mayeux felt Mrs. Parks was unable to work. Drs. Davis and Morgan both felt she could return to work. The testimony of the treating physician is entitled to greater weight than that of another physician who has not had frequent contact with the plaintiff. Gowers v. Gour, 350 So.2d 935 (La. App. 2d Cir.1977), writ denied 352 So.2d 1046 (La.1977). The testimony of a specialist should be accorded greater weight than that of a general practitioner. Martinez v. Equitable Equipment Company, 330 So.2d 634 (La,App. 4th Cir.1976).

In this case the only doctor testifying that Mrs. Parks cannot work is a general practitioner who had only seen her on a few scattered occasions. Dr. Davis was the treating physician and an orthopedic surgeon who recommended that she return to work as of February 12, 1982. Dr. Morgan saw Mrs. Parks only once quite some time after the accident, but he is an orthopedic surgeon specializing in hand cases. It was his opinion that Mrs. Parks could work.

Based on the above facts, we hold that the trial court did not err in failing to find Mrs. Parks totally and permanently disabled. She was correctly found to be temporarily disabled through May 23, 1982.

Colonial argues that because Dr. Davis stated that Mrs. Parks could return to work as of February 12, 1982, the period of temporary total disability ended then. We disagree. It is clear that at that time Mrs. Parks had not been discharged from treatment, and she was advised to continue to wear the splint at all times while she was working. Not until the April 29 visit was Mrs. Parks released for work without substantial limitation. See Wainwright v. Files Timber Company, Inc., 404 So.2d 1287 (La.App. 2d Cir.1981). The report of this visit dated May 25 was properly relied on in terminating temporary total disability benefits at that point. Thus the period of total disability was correctly set from December 5, 1981 to May 23, 1982.

PARTIAL DISABILITY

The trial court found that Mrs. Parks is partially disabled as a result of this accident and awarded her benefits at the minimum rate of $26.80 per week for 450 weeks pursuant to LA-R.S. 23:1221(3). Mrs. Parks argues that the amount of compensation should have been $89.33 per week and Colonial asserts that there was no partial disability. Because we find that Mrs. Parks was not partially disabled, we do not reach the issue of amount of compensation.

In Stracener v. United States Fidelity & Guaranty Company, 420 So.2d 1101 (La. 1982), the Louisiana Supreme Court stated:

“In order to recover benefits for partial disability under the above provision, plaintiff must show that his injury prevented him from performing the ‘duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience.’ ”

Aside from Mrs. Parks’ general statement that she does not feel she can perform her duties as a nurse’s aide, there is no evidence that she cannot do those or other similar duties. Both specialists testified that she could do the work, and both of these doctors appear to be familiar with the duties involved in such a job. In view of these facts, the trial court was clearly wrong in finding that Mrs. Parks was partially disabled.

SCHEDULE LOSS

Mrs. Parks is entitled to a schedule loss under LA-R.S. 23:1221(4). Mrs. Parks asserts that, if this provision is applicable, such a loss should be awarded for loss of a hand; and Colonial urges that the award should be limited to loss of a finger.

Dr. Davis’s opinion was that Mrs. Parks had suffered a 15% functional disability in her finger. He declined to assign a percentage of disability to the hand as a whole stating that “the impairment should be called against the finger itself.” Dr. Morgan assigned a 40% rating to the finger and related it to the hand by assigning a 6% rating. However, he made it clear that the injury was only to the finger and that such a percentage rating could be related to the hand, the arm, and the body as a whole without a physical disability existing in the expanded areas.

We find that the evidence in this case has failed to relate the finger injury to the hand as a whole other than that the finger forms a component part of the hand. See Nash v. Knoblock, 381 So.2d 404 (La.1980). Mrs. Parks’ award should be made pursuant to LA-R.S. 23:1221(4)(c) which provides, “For the loss of any other finger, or a big toe, sixty-six and two-thirds per centum of wages during twenty weeks.” Using Dr. Morgan’s rating, the compensation will be at a rate of $35.73 per week for twenty weeks (40% of $89.33).

PENALTIES AND ATTORNEY’S FEES

Mrs. Parks received compensation for total disability from the time of injury until May 23, 1982. The termination was based on the report of the treating physician in the case and a specialist in the field. The trial court did not err in finding that benefits were not arbitrarily or capriciously terminated.

In any event, Colonial is an insured employer and cannot be held liable for penalties and attorney’s fees under LA-R.S. 23:1201.2. Fontenot v. Town of Kinder, 377 So.2d 554 (La.App. 3rd Cir.1979), writ denied 379 So.2d 1102 (La.1980). The worker’s compensation insurer, Ranger Insurance Company, was not a named defendant in this case and cannot be cast in judgment.

DECREE

For the foregoing reasons, that portion of the trial court judgment awarding plaintiff benefits for partial disability in the amount of $26.80 per week for 450 weeks is reversed and set aside.

It is now ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, Linda Parks, and against defendant, Colonial Nursing Home, for weekly benefits of $35.73 from May 23,1982, for a period of twenty weeks for her schedule loss of a finger, with legal interest from due date until paid, with credit to be given for payments thereon made by the defendant.

In all other respects the judgment of the trial court is affirmed. Costs of this appeal are assessed equally between plaintiff, Linda Parks, and defendant, Colonial Nursing Home.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

DOMENGEAUX,' J., concurs in the result.

ON APPLICATION FOR REHEARING

PER CURIAM:

Both appellant and appellee have applied for a rehearing in this case. Both applications are denied.

Defendant-appellant has called our attention to the fact that in our resolution of the case we failed to apply LSA-R.S. 23:1223. Appellant is correct. We should have done so. See Touchet v. Broussard, 414 So.2d 397 (La.App. 3rd Cir.1982). Under the circumstances we amend our opinion and judgment to reflect that plaintiff is not entitled to any award for the schedule loss, LSA-R.S. 23:1221(4), for the reason that her award for temporary total disability, LSA-R.S. 23:1221(1), is greater than the amount due under the Schedule Loss.

Section 1223 reads:

§ 1223. Deductions from benefits
Where compensation has been paid under subdivisions (1), (2), or (3), of R.S. 23:1221, the amount of such payment shall be deducted from any compensation allowed under subdivision (4) thereof or under Sub-part C of this Part.”

When the deduction, or credit, is applied, the credit eats up the amount due for the schedule loss.

Plaintiff-appellee contends that the applicable minimum compensation is $55.00 per week, and we erred in placing the schedule loss at $35.73 for twenty weeks. The point is moot. The period of temporary total disability equaled approximately twenty weeks also. The amount of the judgment for that period was $89.33 per week. Therefore, it is immaterial whether the schedule loss should be calculated at $55.00 or $35.73 for twenty weeks.

Our opinion on original rehearing is accordingly amended to eliminate the award for the schedule loss.


source: Caselaw Access Project

author: CUTRER, Judge.

license: Public Domain

text:
    Brenda F. JACKSON, et ux., Plaintiffs-Appellants, v. FIREMAN’S FUND INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 83-146.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1983.
    Writ Denied Oct. 28,1983.

      Nathan A. Cormie, Lake Charles, for plaintiffs-appellants.
    Raggio, Cappel, Chozen & Berniard, Fred L. Cappel, Lake Charles, for defendants-ap-pellees.
    Before DOMENGEAUX, CUTRER and STOKER, JJ.
   CUTRER, Judge.

Brenda F. Jackson and her husband, Ernest Jackson, sued the Kroger Company (Kroger), and its insurer, Fireman’s Fund Insurance Company (Fireman’s Fund), for damages sustained when Mrs. Jackson was struck by cans which fell from a display in Kroger’s Twelfth Street store in Lake Charles, Louisiana. A jury found that Kroger was neither negligent nor guilty of “defectively” stacking its merchandise. Pursuant to these findings the trial court dismissed the Jacksons’ demands and rendered a verdict in favor of Kroger and its insurer, Fireman’s Fund. The Jacksons appealed and we affirm.

FACTS

On the morning of Friday, April 16,1982, Mrs. Jackson entered Kroger’s “Family Center Store” on Twelfth Street in Lake Charles, Louisiana. This store is a large, self-service grocery store. Mrs. Jackson was very familiar with the store; according to her own testimony, she visited the store “almost every day.” Upon entering the store, Mrs. Jackson secured a shopping cart and proceeded to the meat department. After making several selections in the meat department Mrs. Jackson made her way to a display of Kroger’s own store brand “cost-cutter” canned goods.

The “cost-cutter” canned merchandise was stacked in a stairstep fashion with the highest step being higher than Mrs. Jackson’s head (Mrs. Jackson is 5 feet 3 inches tall). The cans in the display were still in cardboard boxes but the front portion of the boxes had been cut away to allow customers to see the labels on the various products. Mrs. Jackson viewed the display for some time trying to decide which items to purchase. As she stood in front of the display several other customers selected products and moved on. She then proceeded with her shopping and, as she was doing so, several cans fell from the upper portion of the stairstep display, striking Mrs. Jackson causing facial and arm injuries.

After being struck by the cans Mrs. Jackson reported the incident to the assistant manager on duty, Karen Ashworth. Mrs. Ashworth discussed the incident with Mrs. Jackson and then requested that she fill out an accident report. Mrs. Jackson complied with this request and signed the report. Mrs. Jackson’s statement regarding the occurrence of the accident consisted of the following:

“I was picking up some can [sic] goods and then the whole stack came down.”

At trial Mrs. Jackson testified that she had not touched the cans in the display before they began falling. She stated that she observed that some cans had been removed from the middle of the display which caused cans to fall from the top row.

On cross examination, she was questioned about the statement set forth in the accident report which appeared to conflict with her trial testimony. Her explanation of the statement was as follows:

“Q. I show you a photocopy of a document that’s entitled Statement of Customer. ..
⅜ ⅜ ⅝: ⅜ ⅜: ⅜
“A. ... Yes, sir ...
“Q. ... and ask you, Brenda, if that’s what you were handed, and if that’s what you filled out ...
“A. ... (Witness reviews document.) Yes, sir; I’ve seen this one.
“Q. It contains what purports to be your signature at the bottom. Is that your ...
‘A. ... Yes, sir; it is.
“Q. And the writing under the printed in form, is that your handwriting?
‘A. Yes, sir; it is.
“Q. It states, quote, I was picking up some cans and then the whole stack came down. Is that what it states?
“A. Yes, sir.
“Q. But you’re stating now that you weren’t picking up any cans, you were just looking at them; is that correct?
“A. I was in the process of buying some canned goods, but I had not picked up any cans at that point.
“Q. Did you tell Mrs. Ashworth that you had retrieved a can and the can came down or do you recall?
“A. I really don’t remember.
“Q. Well, you wouldn’t have told her that if that isn’t what happened ...
“A. ... Sir?
“Q. There would be no reason for you to tell her that you had pulled a can out if that’s not actually what you did, right?
“A. No. She asked me what ... what I was doing, shopping or what, and at that point I was very upset. I was bleeding. I was hurting.”

Mrs. Ashworth testified that, after the accident, Mrs. Jackson came to her at the service desk and reported the accident. When asked what happened, Mrs. Jackson told this witness “that she was getting some groceries and the cans had fallen upon her.” Mrs. Ashworth stated that she and Mrs. Jackson went to the area of the accident. Mrs. Ashworth stated that she found five or ten cans lying on the floor. She stated that she noticed that some cans had been removed from the middle rack, causing the upper cans to become dislodged. Her testimony in this regard was as follows:

“Q. When you looked at the display what was your purpose for looking over at the display?
‘A. To see exactly where the cans had come from and how they had fallen.
“Q. What did you see, if anything, that suggested to you how they had fallen and why they had fallen?
“A. It looked like it had been pulled from the middle instead of the top.
“Q. Can you explain that any more ... in any more detail?
‘A. The way the cans are stacked, they are stacked in cardboard boxes on top of one another, and the way it looked like to me the cans were taken from the middle instead of the top box.
“Q. What would that do to the top box?
“A. It would make it fall if they were taken from underneath.”

Mrs. Ashworth also testified that the method of displaying canned goods, that was being used at the scene of the accident, is a method that was commonly used in this store and other Kroger stores. She stated that the display was known as an “incap” display. She testified that she had not heard of any other incidents occurring with the “incap” display. This type of display was still in use at the time of trial.

The jury was presented special interrogatories and answered the first two as follows:

“1. Was the defendant, the Kroger Company, guilty of substandard conduct which proximately caused plaintiff’s [Mrs. Jackson’s] injuries?
Yes No
“2. Did the defendant [Kroger] defectively stack its merchandise so as to create an unreasonable risk of harm to others?
Yes No

Pursuant to the above findings by the jury the trial judge rendered judgment in favor of the defendants and dismissed the Jack-sons’ demands and they appealed.

The issues presented by this appeal are as follow:

(1) Whether Jackson proved the existence of a “premise hazard,” the proof of which would have been sufficient to shift the burden to defendants to exculpate themselves from a presumption of negligence; and
(2) Whether Jackson proved the existence of a “defect” under LSA-C.C. art. 2317 sufficient to justify the imposition of strict liability upon defendants and thus requiring defendants to establish one of the defenses applicable in 2317 cases.

From the jury’s answers to the special interrogatories it is clear that the jury found, as a matter of fact, that plaintiff had not crossed the respective thresholds of either negligence or 2317 strict liability. We shall review the record to determine if the jury’s factual findings were clearly wrong or constitute manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973). Only if we find such clear error in the jury’s fact finding may we reverse.

EXISTENCE OF A “PREMISE HAZARD”

A “premise hazard” has been defined by the Louisiana Supreme Court to be a condition of the premises or of the store operation that results in an unreasonable risk of harm to customers under the circumstances. Johnson v. Ins. Co. of North America, 360 So.2d 818 (La.1978). It is only after facts sufficient to establish the existence of a premise hazard have been proven by the plaintiff that the burden, to exculpate himself from a presumption of negligence, shifts to the defendant-storekeeper. Kavlich v. Kramer, 315 So.2d 282 (La.1975).

Shortly after the Kavlich decision, the Supreme Court decided the case of Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976). Like Kavlich, Gonzales was a slip-and fall case. The court stated:

“In placing the duty of going forward with the evidence on the store owner, Kavlich announced no rule that the store owner insures a customer’s safety. Under Article 2315 of the Louisiana Civil Code, fault is basic to recovery. If the evidence brought forward establishes that the store owner is free from fault, there can be no liability.” (Emphasis in original.)

In Johnson, supra, a falling merchandise case with facts very similar to the instant case, the Supreme Court granted writs and reversed the Court of Appeal’s affirmance of a trial court judgment in favor of Mrs. Johnson. Citing both Kavlich and Gonzales the Supreme Court reiterated that the burden only shifts to the storekeeper after the plaintiff proves the existence of a premise hazard. The Supreme Court used the following language:

“Our opinions in Kavlich and Gonzales shift the burden of proof to a store operator after a plaintiff has shown that a premise hazard caused his injury. Once the premise hazard and the injury it caused are proved by a preponderance of the evidence, the burden of proof shifts to the store owner to show that he was not negligent. But that shifting does not occur until the plaintiff preponderantly proves a premise hazard.”

The question before us is whether the jury was clearly wrong in finding, based upon the evidence presented, that a premise hazard did not exist at Kroger’s store when Mrs. Jackson was injured. To be a premise hazard the condition in question must represent a unreasonable risk of harm to customers under the circumstances. Mrs. Jackson was very familiar with the Kroger store in general and with the “cost-cutter” products, and their regular manner of display, in particular. Mrs. Jackson testified that, in addition to visiting the Kroger store almost daily, she normally purchased “cost-cutter” canned goods.

To recover under the premise hazard doctrine (negligence) Mrs. Jackson had the obligation of proving that the “incap” method of display created a premise hazard. The evidence clearly reflects that the cause of the incident was the removal of cans from the middle of the display either by Mrs. Jackson or other customers (to the knowledge of Mrs. Jackson), which undermined the stability of the stack causing some cans to fall from the top rack. The jury, according to the evidence presented, would not be clearly wrong in concluding that Kroger was free of negligence in using the “incap” method of display. This assignment of error lacks merit.

EXISTENCE OF A “DEFECT”

To establish the liability of a defendant under LSA-C.C. art. 2317 a plaintiff must prove three things: (1) the thing was in defendant’s custody; (2) the thing had a vice or defect; and (3) the injury or damage was caused by the vice or defect. It is undisputed here that the thing, the display, was in Kroger’s custody and that Mrs. Jackson was injured. The jury found, and this is the factual finding which Jackson attacks, that there was no defect. We must determine if the jury was clearly wrong in their finding.

Jackson has cited two cases; Marquez v. City Stores Company, 371 So.2d 810 (La. 1979) and Williams v. Hempen, 396 So.2d 999 (La.App. 3rd Cir.1981), for the proposition that an “unusual occurrence” may prove the existence of a “defect.” We take no exception to either of these cases; however, we find that they do not control the facts of this case.

Mrs. Jackson contends that, because the “incap” display is usually safe, the fact that merchandise fell at all is proof of some defect in this particular instance. We do not agree.

The Marquez case dealt with an escalator in a department store. The plaintiff’s young son was injured when part of his tennis shoe became caught in the escalator. The Supreme Court said:

“[T]he fact that this escalator caught this child’s shoe is an unusual occurrence in itself which would not have happened had this escalator not been defective.”

This circuit in Williams, a case which involved a large garbage dumpster overturning on a young boy, concluded:

“[t]he fact that this dumpster overturned for no apparent reason is an occurrence which would not have happened had it not been defective.”

As stated earlier we do not quarrel with either the rationale or the result of Marquez and Williams. However, that same rationale is not applicable in this case. There are plausible explanations for the fall of the merchandise other than the existence of a defect. These explanations have been previously set forth in this opinion.

The jury found that Kroger had not defectively stacked the cans which fell on Mrs. Jackson. Our review of the record does not convince us that the jury was clearly wrong in such a determination.

For these reasons the judgment of the trial, court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant, Mrs. Brenda F. Jackson.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Elton DEVILLE, Plaintiff-Appellant, v. DEFENDING ATTORNEYS FOR CONTINENTAL OIL COMPANY, Triangle Refineries Inc., George H. Robinson, Jr., Liskow & Lewis, Xavier G. Lemond, Charles K. Reasonover, Stephen Vogel, Deutsch, Kerrigan & Stiles and Teresa Brown, Defendants-Appellees.
    No. 83-603.
    Court of Appeal of Louisiana, Third Circuit.
    July 26, 1983.

      Elton Deville, in pro per.
    Voorhies & Labbe, Patrick A. Juneau, Jr., Lafayette, Deutsch, Kerrigan & Stiles, Frederick R. Bott, New Orleans, for defendants-appellees.
    Before GUIDRY, FORET and PICKETT, JJ.
   GUIDRY, Judge.

MOTION TO DISMISS

The co-defendants-appellees in this matter, Xavier G. Lemond, George H. Robinson, Jr., and Liskow and Lewis, move to dismiss the appeal of the plaintiff, Elton Deville. Mr. Lemond moves to dismiss the appeal as being premature. Messrs. Robinson, and Liskow and Lewis move to dismiss the appeal as being untimely.

The plaintiff instituted this action against several of the defending attorneys of Conoco, Inc. and Triangle Refineries, Inc., alleging that he was defamed by a statement made by the defendants during litigation between the parties in the case captioned “Elton Deville v. Continental Oil Company, et al.”

The allegedly defamatory statement was made in a Joint Memorandum in Support of a Motion to Dismiss and/or Summary Judgment filed on behalf of the defendants. The following is the alleged defamatory statement:

“This suit is another effort by plaintiff to obtain a larger supply of gasoline than that to which he was entitled to for his service station at a price which would give him a competitive advantage over other service station operators in the local market.”

The defendants herein, George H. Robinson, Jr. and Liskow and Lewis, filed a Motion for Summary Judgment contending that the statement made by the defendants was in no way defamatory. The Court granted the motion and gave as its reasons for judgment:

“In the case before the Court, we are faced with a statement presented in a Joint Memorandum in Support of a Motion to Dismiss and/or for Summary Judgment, which the plaintiff alleges in his petition is a defamatory statement. The petition also alleges that many more remarks would be proven in court. The Court, due to the vagueness of the petition, denied a previous Exception of No Cause of Action and Dilatory Exception Requesting a Change of Venue. After further discovery, specifically the deposition of Mr. Deville, the Court finds that the only allegation against the defendants, George H. Robinson and Lis-kow & Lewis, consists of the allegedly defamatory statement found in the Joint Trial Memorandum. The Court, in reviewing this statement, finds that even though the statement seems harsh and caustic to the plaintiff, the statement is not legally defamatory in nature, because the Court does not feel as if the statement in the Joint Trial Memorandum would create a defamatory impression in the minds of the average persons among whom the statement was to circulate.”

The judgment was signed on January 3, 1983.

An identical Motion for Summary Judgment was then filed on behalf of Xavier G. Lemond on January 26, 1983. The motion was granted, the Court adopting the reasons for judgment given in its previous ruling of January 3, 1983. This judgment was rendered on May 3,1983 and signed on June 2, 1983.

Mr. Deville filed his appeals from both judgments on May 5, 1983.

The appellees, Robinson, Liskow & Lewis, have filed a motion to dismiss the appeal as untimely. The judgment in their favor dismissing plaintiff’s claims was signed on January 3, 1983, and notice of said judgment was sent on January 5,1983. Code of Civil Procedure Article 2087 provides:

“Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;”

Mr. Deville’s appeal, having been filed on May 5, 1983 is untimely and hereby dismissed at his costs.

The appellee, Xavier G. Lemond, has filed a Motion to Dismiss Mr. Deville’s appeal on the grounds that the appeal is premature. Code of Civil Procedure Article 1911 provides:

“Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.”

Mr. Deville appealed the judgment granting Mr. Lemond’s Motion for Summary Judgment on May 5, 1983. However, the judgment was not signed until June 2,1983. The appellee contends that Bartlett v. Collector of Revenue, 276 So.2d 748 (3rd Cir. 1973), mandates the dismissal of this appeal. However, the Supreme Court in Palmer v. Wren, 361 So.2d 1206 (La.1978), has held that an appeal, originally premature, is not subject to dismissal if the judgment is later signed and is substantially the same as the judgment orally pronounced, and the appel-lee is given fair notice of the appellant’s intent to appeal, or the granting of the appeal, and of the perfection of the appeal. Inasmuch as those circumstances are present here, we will deny the motion to dismiss filed in behalf of Mr. Lemond.

APPEAL DISMISSED IN PART; MAINTAINED IN PART.


text:
    CITY OF NEW ORLEANS, et al. v. UNITED GAS PIPELINE.
    No. C 1093.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1983.

      Before GARRISON, BARRY and BYRNES, JJ.
   WRIT GRANTED AND MADE PEREMPTORY

On June 22, 1983, the trial court entered the following judgment:

“IT IS ORDERED, ADJUDGED and DECREED that defendant, United Gas Pipe Line Company, file into the record by July 25, 1983 the twenty-two (22) depositions designated in the Pre-Trial Order to be offered in whole or in part, and that all other parties shall file their objections thereto in writing by July 25, 1983.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that at the conclusion of this procedure the Court will consider the matter of these consolidated cases submitted.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that all other testimony and evidence designated in the various pre-trial orders is inadmissable for the reason that such testimony and evidence is redundant, cumulative, duplicative and counterproductive.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that the parties offering the testimony and evidence hereby ruled inadmissible shall make a record, in the same manner, of any evidence bearing upon the evidence held inadmissible. The form of this proffer shall be the responsibility of counsel.

IT IS FURTHER ORDERED, ADJUDGED and DECREED that the submission of any post-trial memoranda is hereby waived.”

There is no evidence indicating that defendant’s case would in fact be duplicative, counterproductive, cumulative or redundant. United produced, at the trial court’s request, a pre-trial order entitled “Order Of Proof” which listed 26 live witnesses that it intended to call, as follows:

“ORDER OF PROOF OF DEFENDANT UNITED GAS PIPE LINE COMPANY
1. E.W. Edwards (fact and expert witness on liability)
2. W.T. Hackett, Jr. (fact witness on liability)
3. D.B. Bonnecarrere (fact and expert witness on liability)
4. L.C. Poindexter (By deposition; fact witness on liability)
5. J.H. Roff, Jr. (fact witness on liability)
6. T.L. Aubin, Jr. (fact and expert witness on liability)
7. W.J. Greenwald (By deposition; fact witness on liability)
8. T.C. Beavis (By deposition; fact witness on liability)
9. D.L. Smith (fact witness on liability)
10. F.C. Sweat (fact and expert witness on liability)
11. L. Wesson (fact and expert witness on liability)
12. J.E. Haynes (fact witness on liability)
13. M.T. Belvin, Jr. (fact witness on liability)
14. R.E. Robertson (fact witness on liability)
15. R. Harrell (fact and expert witness on liability)
16. W.C. Marris (fact witness on liability)
17. Portions of depositions of T.R. Pruitt, W.W. Whitmer and E.H. Peters (fact witnesses on liability)
18. Portions of depositions of H.L. Delo-ney, W. McCollam, Jr. and J.M. Wyatt (fact witnesses on liability and damages)
19. W.B. Cassin (fact witness on liability and damages)
20. J.A. Leo and J.F. Vogt (In person or by deposition; fact witnesses on damages)
21. Portions of the depositions of J.L. Cain, G.D. McLendon, J. Davey, J.D. Phillips, J.E. Ammon, G.L. Andrus, M.J. Cade, L.J. Cucullu, H.C. McAfee, J.P. Du-ren, P.P. Colon, C.L. Denson (fact witnesses on damages)
22. C.L. Richards (fact and expert witness on damages)
23. N.B. Hughes (fact and expert witness on damages)
24. R.W. Bossung (fact and expert witness on damages)
25. A. Gerber (fact and expert witness on liability and damages)
26. E.C. Moore (fact and expert witness on damages)
27. J.W. McKie (fact and expert witness on liability and damages)
28. J.P. O’Leary (fact and expert witness on liability and damages)
29. J.S. Davis (fact witness on liability and damages)
30. J.H. Roff, Jr. (Recalled; fact witness on damages)”
Additionally, defendant stated at that time:
“Pursuant to the Court’s June 14, 1983 request for an evaluation of the status of these cases and for recommendation as to their subsequent conduct (Tr. 29,255-59), United Gas Pipe Line Company (“United”) submits this response as to each item on which the Court requested information.
1. The number of witnesses yet to be called and the nature of their testimony.
The witnesses United intends to call as a part of its responsive case are shown on the attached order of proof as filed on February 25, 1983. After the completion of Mr. Aubin’s testimony, United has 17 remaining witnesses to appear in person and 22 depositions to be used in whole or in part.

Most of United’s remaining witnesses are present or former company officials who will testify on liability issues raised by the plaintiffs, e.g., United’s conduct of its gas acquisition, gas supply, planning, sales and other company policies during the 1960’s and 1970’s. In addition, outside consultants — including representatives of other gas pipelines, producers, consulting petroleum engineers and governmental officials— will give expert testimony on United’s conduct of its affairs and the forces combining to bring about a natural gas shortage nationally and on United’s system. Finally, a number of witnesses will give fact and expert testimony on various components of the plaintiffs’ alleged damages.”

On the basis of the above two documents, the trial judge ruled defendant’s case inadmissible. The “ruling” was made without any prior objections to the evidence by plaintiffs, without any evidentiary hearings, and without any knowledge of the contents of the evidence. In so ruling, the trial judge excluded all of defendant’s evidence on the issue of damages.

Procedural due process is a fundamental constitutional right provided for in both the U.S. Constitution via operation of the 14th Amendment and in the Louisiana Constitution of 1974, Article I § 2. Right to a full and fair trial has consistently been upheld by both the United States Supreme Court and the Louisiana courts in a variety of situations:

1. Granting plaintiff’s motion for a directed verdict at the close of plaintiff’s case was a denial of due process because the granting of the directed verdict denied defendants’ right to present their case and háve their day in court. Jimcoily v. State Department of Highways, 361 So.2d 982 (App. 4th, 1978), writ denied, 363 So.2d 1384 (La., 1978); Miller v. N.O. P.S.I., 389 So.2d 107 (App.4th, 1980); Gunter v. Plauche, 399 So.2d 727 (App. 1st, 1981); Woods v. Cooper, 420 So.2d 503 (App.2d, 1982).
2. Denial of all of a defendant’s evidence on one particular issue has been held violative of procedural due process. Georgia Railway and Electric Company v. Decatur, 295 U.S. 165, 55 S.Ct. 701, 79 L.Ed. 1365 (1935); Curro Underwriters, Inc. v. Guastella Construction Co., 195 So.2d 300 (App. 4th, 1967); Crescent River Pilot’s Association v. Heuer, 193 So.2d 276 (App. 4th, 1966); Saunder v. Shaw, 244 U.S. 317, 37 S.Ct. 638, 61 L.Ed. 1163 (1917).
3. Where defendant was denied inspection of the premises such that no evidence of damages could be presented by defendant. Hopkins v. Department of Highways, 350 So.2d 1271 (App. 3rd, 1977); Kennedy v. New Orleans Railway and Light Company, 142 La. 879, 77 So. 777 (1918); Bailey v. Fisher, 11 La.App. 187, 123 So. 166 (Orl.App., 1929).
4. Where the court has “changed horses in midstream” by deviating standards or otherwise treating parties in a less than even-handed manner. NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); King v. Finch, 428 F.2d 709 (5th Cir., 1970); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951); Brinkerhoff-Faris Trust and Savings Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107 (1930).

In reversing the Louisiana Supreme Court, Mr. Justice Holmes stated:

“He now brings this writ of error and says that he has been deprived of due process of law contrary to the Fourteenth Amendment, because the case has been decided against him without his ever having had the proper opportunity to present his evidence. Technically this is true, for when the trial court ruled that it was not open to the plaintiff to show that his land was not benefited, the defendant was not bound to go on and offer evidence that he contended was inadmissible, in order to rebut the testimony already ruled to be inadmissible in accordance with his view. The Chief Justice and Mr. Justice O’Niell were of opinion that the case should be remanded to the trial court, we presume upon the ground just stated. Probably the majority of the Supreme Court thought that it was so plain on the uncon-troverted facts that the case was within the principle of The Myles Salt Company [v. Iberia & St. M. Drainage Dist., 239 U.S. 478, 36 S.Ct. 204, 60 L.Ed. 392] Case that to remand it would be an empty form — a mere concession to technicality. It may turn out so, but we do not see in the record an absolute warrant for the assumption and therefore cannot be sure that the defendant’s rights are protected without giving him a chance to put his evidence in.” (Emphasis Supplied).

Accordingly, the judgment of the district court dated June 22, 1983 is vacated, annulled and set aside, the writ is granted and made peremptory. This matter is remanded for further proceedings with orders that defendant be allowed to present its case in full in open court.

      . Saunders v. Shaw, supra, at 319, 37 S.Ct. at 639.


author: GULOTTA, Judge.

text:
    Llewellyn SONIAT, Patricia Leonard, Jerome Glazer, Philip Baptiste, George Ethel Warren, Betty Solomon and Reverend W.E. Hausey v. Councilman Sidney J. BARTHELEMY, Councilman Joseph I. Giarrusso, Councilman Bryan Wagner, Councilman James Singleton, Councilman Mike Early, Councilman Lambert Boissiere, Jr., Councilperson Wayne Babovich, et al.
    No. C-1112.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 27, 1983.
    Rehearing Denied July 28, 1983.

      John S. Keller, New Orleans, Edwin A. Stoutz, Jr., New Orleans, for relators.
    Okla Jones, II, Ronald P. Nabonne, Walter J. Wilkerson, New Orleans, for respondents.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, 1st Asst. Atty. Gen., Ronald C. Davis, Lois C. Davis, Asst. Attys. Gen., New Orleans, for registrar of voters.
    Before GULOTTA, CIACCIO and WILLIAMS, JJ.
   GULOTTA, Judge.

This mandamus suit is before this court on certiorari.

This litigation involves a petition to amend the Home Rule Charter of the City of New Orleans by deleting the prohibition in Sec. 4-201 against a Mayor who has served two full consecutive terms from succeeding himself.

The Charter provides for amendments by an affirmative vote of a majority of qualified electors of the City. Proposed amendments may originate either by ordinance of the City Council or by a petition of not less than 10,000 of the duly qualified registered voters of the City.

On May 12, 1983, a petition for the proposed Charter amendment with 18,336 signatures was submitted to the City Council. The Council referred the matter to the Registrar of Voters for the Parish of Orleans to determine whether it was signed by 10,000 duly qualified registered voters. On May 20 and June 20, supplemental lists of signatures were submitted and forwarded to the Registrar for verification. On June 22, the Registrar certified in excess of 10,000 signatures from the original and supplemental petitions. He further stated that if the verification process were to continue he would “eventually verify 10,000 signatures from the May 12, 1983 submission.”

Plaintiffs, who are citizens and taxpayers of the City, filed a suit on July 12, 1983, against the Registrar of Voters and the City Council seeking (1) to mandamus the Registrar to continue verifying signatures submitted-to him on May 12, 1983 to determine if the petition contains the signatures of 10,000 duly qualified registered voters of the City, and (2) to mandamus the Council to provide by ordinance for an election on the proposed Charter change to be set not less than 90 days nor more than 120 days after July 12, 1983. The next scheduled election day within that time frame is October 22, 1983.

Based on the Registrar’s certification to the Council on June 22, 1983 of 10,000 verified signatures from the original and supplemental petitions, the trial judge denied mandamus against the Registrar, thereby dismissing the petition against him. He further ordered the Council to provide by ordinance for an election on the proposed amendment “... if the Council received 10,000 signatures of qualified registered voters on May 12, 1983.” The trial judge noted “The fact that the Council may not at this writing, have received the certification of the Registrar of Voters, must not impede said Council in its mandated duty to pass an ordinance within sixty (60) days of May 12.”

When the Council, at its meeting on Thursday, July 21, did not adopt the ordinance, plaintiffs filed a motion in the trial court for clarification of judgment and contempt of court. In that motion, plaintiffs claimed that the July 21 meeting of the Council was the last regular meeting for calling an election on October 22, 1983, in compliance with the 90 day notice requirement of Sec. 9-202(2) of the Charter.

When the trial judge set the contempt rule for hearing on July 27, plaintiffs sought supervisory writs in this court to have the motion for clarification and contempt heard on or before July 23,1983, and to order the Council to meet and pass the appropriate ordinance on or before that date. Alternatively, plaintiffs request this court call an election in accordance with the Charter.

On July 22, we issued certiorari ordering the matter be submitted in its entirety on July 26, 1983, by all parties to the original litigation.

The Registrar claims that he has no further duty to perform and the judgment dismissing him from this suit should be affirmed because he has certified 10,000 signatures. Citing LSA-R.S. 18:221, the Registrar further contends that in this mandamus proceeding he can only be sued as a “sole defendant”, and that joinder of the Council as a party defendant contravenes the statute.

The question confronting us is whether the phrase, “sole defendant”, in the statute not only allows the Registrar to be sued alone but also prohibits the joinder of other parties who are proper parties in the overall determination of a justiciable issue. In this dispute, the Registrar and City Council, whose functions interrelate in the resolution of the problem, are indispensable parties to the suit. An example of interrelationship is a letter attached to the petition from the Registrar to the Clerk of the Council stating that, if the request came from the Council for verification of the signatures on the May 12,1983 petition, the Registrar would continue the process of verification.

Although we find no jurisprudence interpreting the applicable part of LSA-R.S. 18:221, our brothers on the First Circuit in Groves v. Board of Trustees of Teach. Retire. Sys., 324 So.2d 587 (La.App. 1st Cir. 1975), writs denied 326 So.2d 378 (La.1976) and 326 So.2d 380 (La.1976), recognized the right of intervention in a mandamus suit. Furthermore, if we take the view that the phrase “sole defendant” is a prohibition against joining an indispensable party, the statute would run in direct contravention and conflict with LSA-C.C.P. Art. 641 which provides:

“Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
No adjudication of an action can be made unless all indispensable parties are joined therein.”

We point out further that if plaintiffs had chosen to file one suit against the Registrar of Voters seeking mandamus ordering the Registrar to continue the inspection and certification of the names on the May 12 petition, and a second, separate suit had been filed against the Council, it would be within the Court’s discretion to consolidate both matters, putting both cases in virtually the same posture as the present litigation. Under the circumstances, we reject the Registrar’s contention regarding a misjoin-der of parties.

Accordingly, we conclude that the Registrar of Voters is properly joined with the Council as party defendants and both defendants are properly before this court.

Turning now to the central issue in this matter, we are confronted with the Council’s argument that the 10,000 signatures of qualified voters were not certified until June 22, 1983, and, accordingly, that the Council has until August 21,1983 to call an election pursuant to the mandate of the Home Rule Charter. Based on this factual conclusion, the Council asserts that the exercise of supervisory jurisdiction is not appropriate where there has been no showing of irreparable injury.

The Council further contends that Sections 9-201 and 9-202 of the Charter do not provide for the filing of supplemental petitions and, because the original petition submitted to the Council on May 12 did not contain a sufficient number of signatures of duly qualified registered voters, the trial judge erred in prematurely mandating the Council to call the election.

We do not agree. On June 22,1983, the Registrar of Voters certified to the Clerk of the Council that as of noon of that date he had verified the signatures of more than 10,000 qualified registered voters from the original petition submitted on May 12, 1983 and the supplemental petitions submitted on May 27, 1983 and June 21, 1983. In that letter the Registrar pointed out:

“We believe that if the verification process continues we will eventually verify 10,000 signatures from the May 12, 1983 submission.”

It is clear from this letter (and from the Registrar’s testimony in the mandamus hearing) that, if the Registrar were permitted to continue to examine the 18,336 names on the original petition, eventually 10,000 signatures would be verified. This testimony is significant because on May 16, 1983, four days after submission of the original petition, 9,103 signatures had been certified. Also significant is that 9,414 names had been certified from the original petition at the time of the July 15 trial of the mandamus.

We digress to point out that when the Council received the original petition it properly submitted the list to the Registrar of Voters for verification purposes. We point out further that the method utilized by the Registrar in seeking verification was reasonable and appropriate under the circumstances. The problems encompassed by the Registrar were illegible names and incorrect or missing addresses.

When we consider the key role' of the Registrar of Voters in the Charter amendment process, together with his assertion that the required number of signatures would eventually be verified from the May 12,1983 petition, we are led to conclude the trial judge erred in not requiring the Registrar to continue his verification search. The continuing search is particularly important when considered in light of the Council’s duty to provide an ordinance within 60 days of receipt of the petition. If the original petition contains the minimum required number of signatures, the “receipt” of the petition, duly verified, is May 12, the day the original petition was filed with the Council. Under these circumstances, the 60 day period for the adoption of an ordinance commences from May 12, 1983.

If indeed the definitive date triggering the 60 day requirement for providing an ordinance is May 12, the clear intent of the framers of the Home Rule Charter and those provisions relating to its amendment cannot be circumvented by the Council’s failure to provide the necessary ordinance when the 10,000 signatures have been certified within the 60 day period from the filing of the original petition. Indeed, on June 23, 1983, one day after the Registrar’s certification, an ordinance was introduced before the Council to set in motion the process for amending the Charter in accordance with Sections 9-201 and 9-202. However, action on that proposed ordinance was deferred on July 7 to an indefinite date.

One of the problems confronting us is that Section 9-202(2) provides the election shall be fixed at no less than 90 nor more than 120 days after the effective date of the ordinance. Because the ordinance has not been adopted by the Council and because there are less than 90 days before the October 22 election, this provision cannot be satisfied. As we interpret this provision, its intended purpose is to allow sufficient time to make the voting public aware of the proposed amendment.

Under the unusual circumstances in the case, the requirement of compliance with this 90 day provision has little meaning. Furthermore, there is sufficient time for the Council to comply with the requirement of publication not less than 60 days prior to the election, if indeed the Registrar’s continued search results in the calling of the election on October 22, 1983. We conclude, therefore, that failure to comply with the 90 day requirement will not invalidate the adoption of the ordinance if the other requirements of the Charter provisions are met and if the Registrar certifies the required number of names from the May 12 petition. Were we to reach a different conclusion, we would be permitting delays in the certification process to frustrate the clear intent of the Charter amendment provisions.

In the final analysis, the crucial question is whether the petition contained the signatures of 10,000 duly qualified registered voters of the City of New Orleans on May 12, 1983, or whether the required number of certified signatures was not obtained until June 22,1983, when the Registrar certified the sufficient number of names from the original and supplemental lists. If the petition was valid on May 12, the election should have been called for the next regularly scheduled election on October 22, 1983. If, on the other hand, the 10,000 names are not certified from the May 12 list, then the Council should not be mandated to call the election for October 22. Accordingly, it is necessary that the Registrar of Voters continue to search through the names on the May 12 list to ascertain whether or not there are 10,000 signatures of duly qualified registered voters of the City.

Having so concluded, we reverse and set aside the judgment of the trial court insofar as it relieves the Registrar of Voters from the responsibility of continuing the search and dismisses the Registrar from the suit. The judgment mandating the City Council is affirmed. The judgment is recast as follows:

IT IS ORDERED that the Registrar of Voters for the Parish of Orleans continue the search of the May 12, 1983 list of petitioners to ascertain whether it contains the signatures of not less than 10,000 duly qualified registered voters of the City on that list. The Registrar is permitted until not later than Wednesday, August 3, 1983 at 4 P.M. to certify whether or not the May 12 list contains the minimum number of signatures. If the Registrar certifies to the Council on or before the 4 P.M. August 3 deadline that the May 12 list contains the signatures of not less than 10,000 duly qualified registered voters of the City of New Orleans, the City Council is ordered to meet not later than August 4,1983, and to adopt an ordinance submitting to the electors of the City of New Orleans the proposed charter amendment at the election to be held on October 22, 1983. The Council is further ordered to make the publication as required by Section 9-202(2) of the Home Rule Charter of the City of New Orleans.

If the Registrar of Voters certifies to the City Council on or before 4 P.M. August 3, 1983 that the May 12 list contains less than 10,000 signatures of duly qualified registered voters of the City, the Council is relieved of its responsibility to call the election for October 22, 1983.

JUDGMENT AFFIRMED IN PART; REVERSED IN PART; RECAST AND RENDERED.

      . The Charter provides: “Section 4 — 201.
      Election and Term. The electors of the City shall elect a Mayor on the first Tuesday following the first Monday in April, 1954, and in every fourth year thereafter. He shall take office on the first Monday in May. The election shall be conducted in accordance with the general election laws of the State. No person who shall have been elected for two full consecutive terms as Mayor under this Charter shall be eligible to succeed himself.”
      The petition seeks to amend the Charter as follows:
      “Section 4-201. Election and Term. The electors of the City shall elect a Mayor on the first Saturday in February 1982 and in every fourth year thereafter. He shall take office on the first Monday in May. The election shall be conducted in accordance with the general election laws of the State.”

      . Section 9-201 provides:
      “Method of Amendment. This Charter may be amended or replaced only by the affirmative vote of a majority of the qualified electors of the City voting upon such amendments or proposed Charters. Proposals to amend or replace this Charter may originate only in the following manner:
      (a) By ordinance of the Council.
      (b) By petition of not less than ten thousand of the duly qualified registered voters of the City filed with the Council, setting forth the proposed amendments or substitute home rule Charter.”

      . LSA-R.S. 18:221(A), in the Election Code, provides, in pertinent part:
      “The [mandamus] proceeding shall be against the registrar as sole defendant and may be instituted and prosecuted without cost to the district court....” (emphasis ours)


text:
    STATE of Louisiana v. Hector MARTZ.
    No. KA-0425.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Criminal Div., Harry F. Connick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Dwight Doskey, Frank Larre, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GULOTTA, CIACCIO and WILLIAMS, JJ.
   GULOTTA, Judge.

The sole issue in this appeal is defendant’s claim that his five year sentence at hard labor for willful and unlawful distribution of marijuana is excessive.

Hector Martz was charged with two counts of attempt to commit first degree murder of undercover police officers, and one count of unlawful distribution of marijuana. The jury acquitted the defendant of attempted murder, but returned a guilty verdict for unlawful distribution. The attempted murder charges arose out of an altercation and fight between the arresting officers and Martz at the time of the distribution of the marijuana.

After a presentencing investigation, the trial judge imposed the complained-of sentence. In oral reasons directed to the defendant prior to sentencing, the trial judge stated:

“Alright. This Court takes an extremely serious view of drug violations, particularly those involving distribution. Because of this attitude, the Court’s tendency is toward the imposition of substantial terms of imprisonment in such cases. The Court is nevertheless under mandate to follow Code of Criminal Procedure Article 894.1 when imposing sentence. In the case at bar, after reference to such guidelines, the Court finds the defendant has no history of prior delinquency or criminal activity and has apparently led a law abiding life for a substantial period of time before the commission of the instant crime. The Court also finds that due to his rural background and inexperience in the metropolitan areas, as evidenced by the pre-sentence report, the defendant, apparently, did not contemplate that his conduct would cause or threaten serious harm. On the other hand the Court feels that in the view of the extreme seriousness of trafficking of drugs in any form, a lesser sentence than that which is about to be imposed would deprecate the seriousness of the defendant’s crime. The Court further feels that the defendant is in need of some correctional treatment which would be better provided by institutional commitment.”

The circumstances of our case closely resemble those of the recent case of State v. Paddie, 434 So.2d 392 (La.1988). In Paddie, a twenty-two year old first offender was sentenced by the trial judge to serve five years at hard labor for distribution of four ounces of marijuana to an undercover narcotics agent. Attempting to comply with the mandates of LSA-C.Cr.P. Art. 894.1, the trial judge concluded that there was an “undue risk” that Paddie would commit an: other crime during any period of probation and that a lesser sentence would deprecate the seriousness of the crime. The judge reached this conclusion based on the “serious nature of the offense” and the “potential harm to society of this kind of conduct, being more serious in many respects than a violent crime and affecting more people.”

The Supreme Court in Paddie vacated the sentence and remanded the matter to the trial court with instructions to consider properly the guidelines of LSA-C.Cr.P. Art. 894.1 before imposing sentence. The Court concluded that the trial judge, “although attempting to comply with the mandates of art. 894.1”, had failed to accord proper weight to the factors enumerated in the statute before imposing “an apparently severe sentence under the circumstances”. The Supreme Court then noted that Pad-die’s “young age, good academic record, steady employment, lack of juvenile or adult criminal record, and the hardship on his dependents would tend to support a less severe sentence”.

In our case, as in Paddie, the trial judge attempted to comply with the statute, but failed to accord proper weight to the factors outlined therein.

Twenty-five year old Martz had no history of prior delinquency or criminal activity. The judge noted that due to Martz’ rural background and inexperience, the defendant apparently had not contemplated that his conduct would cause or threaten serious harm. He had a record of gainful employment and had led an abiding life for a substantial time before committing the instant offense of distributing “two match boxes” of marijuana to undercover narcotics officers. Considering these factors, we find no factual basis for the trial judge’s conclusions that a lesser sentence than that imposed “would deprecate the seriousness of the defendant’s crime” and that the defendant “is in need of some correctional treatment which would be better provided by institutional commitment.” Had the trial judge accorded proper weight to the factors set forth in LSA-C.Cr.P. Art. 894.1, he might well have imposed a less severe sentence.

Accordingly, the conviction is affirmed, but the sentence imposed is vacated and set aside. The matter is remanded to the trial judge for resentencing consistent with the views expressed herein.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.

      . The jury found the defendant guilty of violating LSA-R.S. 40:966 A(l), which carries a penalty of imprisonment at hard labor for not more than ten years and a fine not in excess of $15,000.00. Defendant was sentenced to five years’ imprisonment with credit for time served, and was further assessed a $500.00 fine, plus $74.00 in court costs.


text:
    Audrey Rickerfor SALADINO v. RAULT PETROLEUM CORPORATION and the Domed Stadium Hotel, Inc.
    No. CA-0587.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.

      Edward J. Boyle, Jr., New Orleans, for plaintiff-appellant.
    William J. Dutel, Laura Jean Todaro, New Orleans, for defendant-appellee.
    Before GULOTTA, CIACCIO and WILLIAMS, JJ.
   GULOTTA, Judge.

In this action for acceleration of rent, the lessor appeals from a judgment maintaining an exception of prematurity. We affirm.

On June 1, 1968, Rault Petroleum Corporation, lessee, entered into a sixty-six year lease of the ground at 1111 Gravier Street, New Orleans. The lease contained the following acceleration clause:

Should the Lessee ... fail to pay the rent ... punctually at maturity, as stipulated ... and should such violation continue for a period of 60 days after written notice has been given to Lessee, then the rent for the whole unexpired term of this lease shall at once become due and exigi-ble; and in such event, Lessor shall have the option ... at once to demand the entire rent for the whole term....

The lease further provided for service of notices at Rault Petroleum’s office or personally on its officers:

All notices, demands and requests which may or are required to be given by either party to the other shall be in writing. All notices, demands and requests by Lessor to Lessee shall be deemed to have been properly given if served personally on an officer of Lessee or if sent by United States registered mail, postage pre-paid, addressed to Lessee at 1010 Commerce Building, New Orleans, Louisiana, or at such other place as Lessee may from time to time designate hereafter in a written notice' to Lessor....

In 1974, Rault assigned its lease to The Domed Stadium Hotel, Inc., a corporation with the same officers as Rault Petroleum. Plaintiff-lessor Audrey R. Saladino was aware of this transfer and intervened in an act of mortgage by The Domed Stadium Hotel, Inc.

In 1977, The Domed Stadium Hotel, Inc. notified Saladino by certified mail that it was appointing Life and Casualty Insurance Company of Tennessee as its agent to receive any notice of default under the lease. In 1980, however, Rault Petroleum Corporation re-acquired the original ground lease.

When the rental for October, 1981 was not timely paid, Saladino’s attorney gave notice of default in a certified letter to The Domed Stadium Hotel, Inc. at 1111 Gravier Street. A desk clerk at The Domed Stadium Hotel signed the postal receipt for this letter on October 31, 1981.

On November 3, 1981, Joseph M. Rault, Jr., president of both Rault Petroleum Corporation and The Domed Stadium Hotel, Inc., issued two checks in payment of the rentals for October and November, 1981. Saladino deposited them on November 11, 1981, but they were returned to her unpaid because of insufficient funds. Neither Sa-ladino nor her attorney notified Rault of the insufficiency, however.

After the expiration of sixty days from her attorney’s October letter, Saladino filed suit on January 11,1982, for acceleration of the entire rent for the remainder of the lease period. Rault Petroleum Corporation and The Domed Stadium Hotel, Inc. were named as defendants. During the penden-cy of the suit, Rault has deposited checks covering the arrearages and the current rentals in the registry of the court.

In written “REASONS FOR JUDGMENT” maintaining the exception of prematurity, the trial judge stated:

“Even if the July, 1977 letter did not make Life Casualty the exclusive agent for service of notice, there is nothing in any of the documents that would authorize notice by mail addressed to the Domed Stadium Hotel, Inc. at 1111 Gravier Street. The lease requires notice by letters addressed to the Lessee at 1010 Commerce Building or served personally on an officer of Lessee. Neither was done here.”

Although conceding her suit is premature as to Rault Petroleum Corporation because it was never notified, Saladino contends that the trial court erred in dismissing her claim against The Domed Stadium Hotel, Inc. According to Saladino, the certified letter regarding nonpayment delivered to 1111 Gravier Street was sufficient notice to The Domed Stadium Hotel, Inc. because it maintained its office there and the lease does not require notice be given to any particular person affiliated with the lessee. Saladino contends that Joseph M. Rault, Jr., president of The Domed Stadium Hotel, Inc. had actual notice of the default (as evidenced by his submission of rental checks in payment of the arrearages in November, 1981), and that it would have been a “vain and useless thing” to direct a notice to the 1010 Commerce Building address where The Domed Stadium Hotel, Inc. did not maintain an office.

We find no merit to Saladino’s contentions. In a dispute arising under a contract of lease, the contract is the law of the case. See Dikert v. Ruiz, 231 So.2d 633 (La.App. 4th Cir.1970). This court has held that the parties to the lease are bound by its written terms, including specific notice requirements. See Brignac v. Boisdore, 272 So.2d 463 (La.App. 4th Cir.1973), affirmed 288 So.2d 31 (La.1973); Audrey Apartments v. Kornegay, 255 So.2d 792 (La.App. 4th Cir.1971).

As pointed out by the trial judge, the lease requires written notice of default addressed to the lessee at “1010 Commerce Building” or served personally on an officer of the lessee. A third alternative for notifying The Domed Stadium Hotel, Inc. is through the Life and Casualty Insurance Company of Tennessee, the appointed agent for receipt of notice. The lessor failed to comply with any of these methods of notification. Accordingly, absent proper notice to the lessee, the 60 day “grace period” after notification never commenced, and the lessor’s right to accelerate the rentals never ripened into a cause of action. Under these circumstances, the trial court properly maintained the exception of prematurity.

In so holding, we distinguish Polizzotto v. D’Agostino, 170 La. 932, 129 So. 534 (1930), relied on by Saladino. In Polizzotto, a letter expressing the lessee’s intention to renew his lease was held to comply with a lease provision requiring written notice to the lessor. The property had been leased to V. Polizzotto individually; however, the notice was signed “V. Polizzotto & Sons.” The Supreme Court stated that the notice, though “technically informal”, sufficiently advised the lessor of lessee’s intention. The Court overlooked the technicality in form to uphold the substance of the lease renewal. There was no issue, in Polizzotto, of improper service of the renewal notice as in our case.

Accordingly, the judgment is affirmed.

AFFIRMED.


author: GULOTTA, Judge,

text:
    Lloyd H. BELLAMY, et al. v. MR. PRIDE CAR WASH, et al.
    No. CA-0826.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.

      Okla Jones, II, New Orleans, for plaintiffs-appellees.
    David M. Packard, Metairie, for defendants-appellants.
    Before GULOTTA, CIACCIO and WILLIAMS, JJ.
   GULOTTA, Judge,

⅛ ⅛⅛ worker>s compenSation case, defendant and ⅛ insurer appeal from a judg. ment fw $10;000.00 in death benefits to a father for the work.reiated death of his minor son. We reverse ⅛6 judgmentj and dismiss the father’s claim.

Defendants contend the trial judge erred in failing to grant a motion for directed verdict. According to defendants, the plaintiff-father failed to introduce any evidence to support conclusions that the fatal accident was work-related and that he was partially dependent upon his minor son’s earnings. Because we conclude that plaintiff failed to establish partial dependency, we find no necessity to consider defendants’ argument that the death was not work-related.

Plaintiff’s son, Jeffery Bellamy, a fourteen year old employee of Mr. Pride Car Wash, died on April 17, 1979, following an April 13 accident. He was earning minimum wage scale while working after school, on week-ends, and during summer vacation. Most of his weekly pay checks were less than $100.00.

According to the father’s testimony, which was disputed by the mother and other witnesses, Jeffery recognized his father’s “hardship” and gave him approximately 25% of his pay. If Jeffery made $50.00 in a week, he would give the father $12.00 or $15.00. Jeffery made these payments “whenever he had enough money”.

The father, on the other hand, was gainfully employed and receiving additional military retirement benefits. In 1978, his net income from these sources was $12,813.24; in 1979, it was $13,796.65.

At the time of his death, Jeffery was in the custody of his mother. His parents were living apart, and plaintiff had been ordered to pay $150.00 per month for Jeffery’s support.

The legal standard for determining partial dependency entitling a claimant to worker’s compensation death benefits is whether “the contributions made by the decedent were looked to by the claimant for the maintenance of his accustomed standard of living”, even though the claimant may have other substantial sources of support from his own work, assets or. other income. See Hurks v. Bossier, 367 So.2d 309 (La.1979); Moore v. Millers Mut. Fire Ins. Co. of Texas, 406 So.2d 708 (La.App. 2nd Cir.1981), writ denied 410 So.2d 1132 (La.1982); Durbin v. Argonaut Ins. Co., 393 So.2d 385 (La.App. 1st Cir.1980). Under LSA-R.S. 23:1252, the question of actual dependency “... shall be determined in accordance with the facts as they may be at the time of the. accident and death.... ”

Assuming the son had regularly contributed a portion of his weekly pay to his father, the evidence is insufficient to support a conclusion that the father looked to these gratuities for maintenance of his accustomed standard of living. The son’s contributions amounted to a small percentage of the father’s income from other sources. Moreover, the son was living with his mother at the time of his death, and the father was obligated to pay $150.00 per month for the son’s support. Under these circumstances, we cannot conclude that the gainfully employed father was partially dependent upon his son’s meager contributions from a part-time job when the son himself depended upon the father for support. Plaintiff has simply failed to establish partial dependency.

Accordingly, the judgment of the trial court is reversed and set aside. Judgment is now rendered dismissing plaintiff’s suit at his cost.

REVERSED AND RENDERED.

      . LSA-R.S. 23:1231 provides, in pertinent part: “For injury causing death within two years after the accident, there shall be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided. If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the yeár prior to his death bears to the earnings of the deceased at the time of the accident.”

      . This appeal involves only the question of the father’s entitlement to death benefits. The mother’s claim has been settled and is not before us.


author: BARRY, Judge.

text:
    STATE of Louisiana v. Henry LEE.
    No. KA-0422.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.
    Harry F. Connick, Dist. Atty, of Orleans Parish, William R. Campbell, Jr., John H. Craft, Asst. Dist. Attys., of Orleans Parish, New Orleans, for plaintiff-appellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before GARRISON, BARRY and BYRNES, JJ.
   BARRY, Judge.

Defendant, Henry Lee, was convicted of theft (LSA-R.S. 14:67) and sentenced to five years at hard labor. The sentence was suspended subject to five years active probation with one year in Parish Prison. As a condition of probation, defendant was ordered to pay $3,000 to the owner of the stolen property by July 15, 1982. On September 15, 1982 the probation was revoked for failure to make restitution and the five year sentence was made executory.

Lee’s only assignment of error is that the trial court imposed an excessive and unreasonable sentence. Specifically, he argues the condition of probation, i.e., that he pay $3,000 within thirteen days of sentencing, even though he was indigent and in jail, is an unreasonable and illegal condition of probation.

The condition of probation raises a serious question* but we need not reach that issue because our review of the record has disclosed an error patent: imposition of an illegal sentence.

At the sentencing hearing the Trial Judge, after reading through a list of defendant’s prior convictions — possession of firearms, simple robbery, auto burglary, altering a U.S. check — then suspended the five year sentence. Code of Criminal Procedure Art. 893 allows a Trial Judge to suspend the sentence “for the first conviction only” which divests the sentencing judge of discretion to suspend a sentence upon conviction of a second felony offense. State v. Wimberly, 414 So.2d 666 (La.1982). The court was without authority to suspend defendant’s sentence.

Additionally, although the conviction itself was not assigned as error, we have reviewed the record for sufficiency of evidence in accordance with State v. Raymo, 419 So.2d 858 (La.1982). We find that viewing the evidence in the light most favorable to the State, a rational finder of fact could have found that each and every element of theft has been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), State v. Fuller, 414 So.2d 306 (La. 1982).

The conviction is affirmed: the sentence is vacated and the case remanded for resen-tencing.

CASE REMANDED FOR RESENTENC-ING.

      . The transcript of the sentencing hearing indicates that as an additional condition of probation, the Trial Judge imposed a two year term of imprisonment. This condition is illegal, in violation of LSA-C.Cr.P. Art. 895(B) which limits incarceration to one year. However, the minute entry and defendant’s brief both state defendant was sentenced to one year.

      . During argument the Court advised defendant’s counsel of the illegal sentence and he conceded the error.


text:
    COMMERCIAL EMPLOYMENT SERVICE, INC. v. MORPHY, MAKOFSKY AND MASSON, INC.
    No. CA-0586.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 3, 1983.

      A.D. Barnes, Jr., New Orleans, for plaintiff-appellee.
    A.D. Freeman, Charlotte A. Hayes, Sat-terlee, Mestayer & Freeman, New Orleans, for defendant-appellant.
    Before GARRISON, BARRY and BYRNES, JJ.
   BARRY, Judge.

The question is whether Morphy, Makof-sky and Masson (Morphy), an engineering firm, owes Commercial Employment Service, Inc. (Commercial) a fee because Morphy employed Walid Rifai, a structural engineer. The trial court found plaintiff-Commercial failed to prove an agreement, but held there was a quasi-contract and Commercial was entitled to one-third of its customary fee.

Morphy asserts on appeal: (1) the lower court erred in allowing Commercial to recover under a quasi-contract; (2) the employment agency’s actions violated LSA-R.S. 23:118(6) (the Private Employment Agency Law) and it should be denied any fee.

FACTS

Edward Morphy, president of the engineering firm, taught a graduate course at Tulane and met Rifai in 1979. Rifai was working for an engineering firm and discussed the possibility of employment with Morphy’s firm. Morphy did not hire Rifai then because Rifai wanted to continue his studies.

Later Rifai visited Nation-Wide Employment Agency in response to an ad for an engineer. Jay Nelson, a counselor at Nation-Wide, interviewed Rifai and sent him on one unsuccessful job interview, after which Nelson did not contact Rifai.

In February, 1980, Nelson left NationWide to become manager of Commercial. Nelson telephoned Morphy’s office to solicit a job order and was informed by Ms. Olsen, the office manager, that the firm wanted to hire an engineer. Olsen told Nelson to send resumés and specified certain qualifications.

Nelson testified he couldn’t recall “talking dollars or percentages” on the phone with Olsen or mailing her a fee schedule, but he did mention to Olsen that Commercial was a “fee paid” agency. She responded that Morphy had “a history of pay fees” and “I’m sure that would be no problem.” Nelson construed the conversation as a “job order,” and submitted an order to a national employment network and at Commercial’s expense placed several classified ads listing the qualifications described by Olsen.

Contrary to Nelson’s recollection, Olsen could not specifically recall her conversation with Nelson but testified, “I would normally say to anyone who called that if the person had [sic] the right credentials came along, we would be interested.” While she could not remember giving Nelson the qualifications for an engineer, she said that, “Any agency that would have called I would have given them that description of our requirements.” Olsen denied discussing fee arrangements with Nelson and stated, although she would expect an employment agency to receive a fee, she would not necessarily expect the employer to pay the fee. She knew Morphy had paid a fee for one design engineer, but indicated she paid an agency fee for her position at Morphy.

Nelson then phoned Rifai and said he had a job order from Morphy and asked if he was interested. Nelson said Rifai was amenable to an interview but it could not be scheduled until Morphy returned from vacation.

Around July 30, 1980, Morphy found two copies of Rifai’s resumé on his desk, one stamped “Commercial Employment Service.” Morphy testified he knew Rifai was registered with an employment agency and instructed Olsen to find out Rifai’s salary requirements. Olsen called Nelson at Commercial, told him Morphy was interested in Rifai, and was told Rifai’s current salary and anticipated salary demand. Nelson testified Olsen called him a few days later, at Morphy’s request, to determine if Rifai was serious about wanting to change jobs or whether he was merely a “recruit” by Commercial. Olsen was unsure whether she called Nelson a second time, but did recall telling Nelson that Morphy did not want to “pirate” Rifai from his current employer.

After receiving assurance from Nelson that Rifai was seriously interested, Morphy contacted Rifai directly and interviewed him. Both men testified Morphy asked Ri-fai if Rifai had any obligation to the employment agency, to which Rifai replied “No.” Morphy hired Rifai at a salary of $27,000 and when Commercial found out, this suit, was filed.

From this evidence the Trial Judge concluded:

“The one fact that stands out, based on all of the. testimony, is that plaintiff has failed to prove, by a preponderance of the evidence that the defendant agreed to pay for the services of the plaintiff in keeping with the ‘fee schedule’ of the plaintiff. No one, not even plaintiff, knows for certain that a fee schedule was ever discussed. Defendant denies ever having received a fee schedule and plaintiff presents no believable evidence that one was ever sent.” (Emphasis in original)

Commercial abandoned its appeal on this point, so that finding is not at issue.

However, the trial court declared:

“This Court finds that there were actions by the plaintiff which would lead to the establishment of a quasi-contract. These include: 1.) Discussions by plaintiff and Ms. Olsen regarding the need for the services of a ‘Design Engineer.’ This is confirmed by Ms. Olsen; 2.) Placement of ad in daily newspaper; 3.) Contacting Walid Rifai to secure a resumé; 4.) Referred the ‘order’ to plaintiff’s national referral service, etc.
See rationale of: Hobbs v. Central Equipment Rental 382 So.2d 238 (1980)

This Court concludes that a quasi-contract existed between these parties and that said contract is enforceable in Louisiana.”

RECOVERY UNDER THE PRINCIPLE OF QUASI-CONTRACT

The principles of quasi-contract are in LSA-C.C. Arts. 2292-2294 and have been applied in countless cases where, absent an express agreement or meeting of the minds, one party performed services for the benefit of another. Kernaghan & Cordill v. Uthoff, 180 La. 791, 157 So. 595 (1934); Hobbs v. Central Equipment Rentals, 382 So.2d 238 (La.App. 3d Cir.1980). Actions which give rise to a quasi-contract were delineated in Hobbs, supra, at p. 244:

Quasi contracts arise without agreement from the lawful and purely voluntary act of a man from which there results any obligation whatever to a third person, and sometime a reciprocal obligation between the parties. LSA-C.C. Articles 2292, 2293, 2294. The essential elements of quasi contracts are a benefit conferred on the defendant by the plaintiffs, an appreciation by defendant of such benefits, and acceptance and retention by the defendant of such benefits under circumstances such that it would be inequitable for him to retain the benefits without payment of the value therefor. [citations omitted]

In Kernaghan & Cordill, supra, our Supreme Court held a real estate broker, who had originated the idea of consolidating several pieces of property for a subdivision, was entitled to compensation under quasi-contract, even though the broker and the property owner failed to agree to a contract. The court noted that “... because of the strenuous efforts exerted and time consumed [by the broker] in originating the plan and seeing that it was carried to completion, ... he certainly thought his firm would be compensated in some way therefor. He further states that it was never any one’s remotest idea that his efforts and services were to be considered a gratuity.”

In awarding a fee in Kernaghan & Cor-dill, supra, the court said:

“We are convinced, because of the great amount of time that the members of plaintiffs’ firm and its employees devoted to the project and its development, that it cannot be fairly and reasonably said that the plaintiffs were not to receive some remuneration therefor. This is particularly true since the defendant accepted and received the advantages and benefits of the plaintiffs’ efforts and at no time protested or warned plaintiffs’ representatives that remuneration or reward of some kind therefor would not be forthcoming, in due course.”

Morphy argues that Nelson never furnished a letter of confirmation or a fee schedule; hence, Morphy had “every reason to believe that the prospective employee (Rifai) is under contract with the agency to pay the agency for finding said employee a job.” However, as Morphy points out in his brief, both he and Rifai testified most emphatically that Rifai assured Morphy he had not contracted with Nelson or Commercial to pay any employment fee. We note that Morphy and Olsen both admitted Morphy had paid employment agency fees for engineers on one or two previous occasions. It is significant that Morphy, an experienced businessman, knowing Rifai was not obligated to pay a fee, could hardly believe Nelson’s agency would perform services gratuitously.

This Court feels the rationale in Kernaghan & Cordill, supra, applies here. Nelson’s activities included a call to Morphy’s office and obtaining a structural engineer job description from Olsen; running ads for that position; contacting Rifai, a qualified engineer, about the job; sending Rifai’s resumé to Morphy; and providing salary and other information about Rifai to Morphy, at Morphy’s request. All those actions were the “procuring cause” of Rifai’s employment with Morphy and we agree that Commercial should be compensated for its successful efforts.

EFFECT OF LSA-R.S. 23:118(6) ON PLAINTIFF’S RECOVERY

Morphy argues, alternatively, that Nelson’s actions violated a provision of the Private Employment Agency Law and Commercial should be barred from recovering a fee under Badon’s Employment, Inc. v. Smith, 359 So.2d 1284 (La.1978). At the time of this case, R.S. 23:118 provided in pertinent part:

“An employment agency shall not engage in any of the following activities of conduct: ...
(6) Direct an applicant to an employer for the purpose of obtaining employment without having first obtained a bona fide order therefor; however, a qualified applicant may be directed to an employer who has previously requested that he regularly be accorded interviews with applicants of certain qualifications. Likewise, an employment agency may attempt to sell the services of an applicant to an employer from whom no order has been received as long as this fact is told to the applicant before he is directed to the employer.”

In Badon’s Employment, Inc., supra, the court held that an employment agency which violates such a provision forfeits any fee. Morphy contends Nelson violated this provision because he did not have a “bona fide order,” nor was he directed by Morphy’s office to “regularly accord interviews with applicants of certain qualifications.” Both of these assertions are based on disputed factual contentions.

Although Olsen denied placing a job order, Nelson testified he was given one by Olsen. Nelson also said Olsen directed him to send her resumes of any qualified applicants. Olsen admitted she told Nelson her firm would be interested in anyone with “the right credentials.” Even if the Trial Judge had not accepted this testimony, we do not believe Nelson’s activities contravened the statute. Both prohibitions in R.S. 23:118 forbid an employment agency from “directing] an applicant to an employer.” It was clearly shown that Nelson neither set up an interview for Rifai with Morphy nor directed Rifai to apply. Nelson merely sent Rifai’s resumé to Morphy for consideration and was waiting for authorization to schedule an interview when he learned Morphy had contacted Rifai directly-

We feel the statute was obviously designed to protect job applicants from wasting time and suffering possible embarrassment by going to a prospective employer under the mistaken belief the employer agreed to an interview. In view of Rifai’s vehement statement that Nelson never mentioned a job prospect with Morphy, and the fact that Rifai’s interviews with Morphy were arranged without Nelson’s knowledge, we discern no possible violation of R.S. 23:118(6).

Commercial is, therefore, entitled to a “reasonable fee” on the basis of quasi-contract and quantum meruit. Neither Commercial nor Morphy contests the amount of the $1,840 judgment (only one third of Commercial’s usual percentage).

The judgment of the district court is affirmed with appellant to pay all costs.

AFFIRMED.