author: GULOTTA, Judge.

text:
    Earl WRIGHT v. OCEAN DRILLING & EXPLORATION COMPANY, et al.
    No. CA-0891.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Motion to Dismiss Writ Application Granted Feb. 10, 1984.

      Owen J. Bradley, Michael R. Guidry, New Orleans, for appellee.
    Michael A. McGlone, James R. Silver-stein, New Orleans, for appellants.
    Before GULOTTA, KLEES and WARD, JJ.
   GULOTTA, Judge.

In this suit under the Jones Act and general maritime law, Ocean Drilling & Exploration Company (ODECO) appeals from a $129,701.00 judgment in favor of plaintiff, who suffered a partial amputation of his right thumb while employed on defendant’s drilling ship. We amend and affirm.

The accident occurred on September 27, 1981, on ODECO’s ship Ocean Tempest. Plaintiff Earl Wright, a “roughneck” on the drilling floor, was removing drill pipe from the well hole when his thumb was smashed between the pipe top and heavy hoist equipment lowered to him by a fellow-worker.

In written reasons for judgment, the trial judge concluded that Wright’s co-worker, the hoist operator, was negligent “in dropping the elevator too quickly and in an unsafe manner”, and that Wright was “free of contributory negligence”. The damage award includes an amount for impairment of Wright’s future earning capacity because of a 20% permanent disability to his right hand.

Appealing, ODECO contends the trial court erred: 1) in not finding plaintiff con-tributorily negligent; 2) in finding an impairment of plaintiff’s earning capacity as an offshore oil worker; and 3) in awarding an excessive amount of damages and interest. In answer to the appeal, plaintiff seeks an increase in the award for loss of future wages.

NEGLIGENCE

ODECO argues that plaintiff negligently contributed to his injury by improperly clenching the handles of the hoist equipment instead of “palming” them with open hands. We reject this contention.

In the repetitive process of “tripping out” or removing drill pipe from the well hole, Wright’s job was to guide the descending hoist equipment onto the pipe top protruding “waist high off the drill floor”. As a co-employee, known as a “driller”, operated a console to lower the heavy device within their reach, Wright and a fellow “roughneck” seized it and influenced its lateral swing above the pipe so that its “elevators” or clamps could be latched around the pipe.

According to Wright, at the time of this accident, he grabbed the elevator handles or “ears” of the equipment as he had done “hundreds of times” before, but the driller caused the device to descend “too fast”, smashing his thumb between the pipe and the elevator handle. Wright testified that “two seconds” elapsed between the time he first grabbed the elevators until they hit the pipe top, and that he could not have removed his hands before the crash. He further stated that he had grabbed the handles “naturally” as he had learned from observing other roughnecks. He had never been taught how to hold his hands during any ODECO training sessions or safety meetings.

According to William Wade, the operator of the hoist console at the time of Wright’s injury, the elevator latch struck the pipe top because the ship “heaved” or rolled with a wave as Wright clenched the elevator handles while attempting to untangle the equipment. Wade testified that “two or three times” before this accident he had told Wright not to grip the elevator handles, but to guide them with open hands as Wade had been instructed when he was a roughneck. Significantly, however, Wade acknowledged, in answer' to the court’s questions, that the open or closed hand position had nothing to do with Wright’s injury in this case, and that Wright was “doing what he was supposed to”.

Wright’s co-worker on the drilling floor, James Beam, likewise testified that the elevator “hung up”, and Wright’s thumb was caught between the “ears” on the elevator and the “box of the pipe” as he was trying to “wrassle the elevators off”. According to this witness, Wright was working in a normal manner “except for the way he had his hands on the ears”, i.e. gripping instead of palming them. James R. Richbourg, another witness to the accident, corroborated Beam’s testimony.

David Webb, a driller for ODECO, also testified that he had instructed Wright to palm, not grab, the elevators so that his hands could be removed “clean and quick, if something happens”. Webb knew of no “set”, written ODECO safety rules, however, requiring placement of hands on the elevator latches in a certain position.

In Jones Act cases, a seaman’s duty to protect himself is “slight”. Although he must use reasonable care, a seaman has no duty to find the “safest” way to perform his work. Savoie v. Otto Candies, Inc., 692 F.2d 363 (5th Cir.1982); Ceja v. Mike Hooks, Inc., 690 F.2d 1191 (5th Cir.1982); Cooper v. Keyes Offshore, Inc., 421 So.2d 385 (La.App. 1st Cir.1982). Only where it is shown that a plaintiff knew or should have known of a safe alternative available to him can his choice of an unsafe course of action be properly considered in determining whether he was negligent. Ceja v. Mike Hooks, Inc., supra.

The evidence considered, we find no error in the trial judge’s conclusion that plaintiff was free of negligence causing his injury. Although ODECO’s witnesses testified that plaintiff had been taught to palm rather than clench the elevator handles, Wright denied receiving any such instruction. Furthermore, the evidence is insufficient to prove that palming the handles would have even prevented this particular, sudden accident.

IMPAIRMENT OF EARNING CAPACITY

According to ODECO, the trial judge’s finding of an impairment of earning capacity disregards medical testimony that Wright can return to work as a “roughneck”. Alternatively, ODECO argues that Wright’s frequent change of jobs during his work history does not support a conclusion that he would have remained in offshore work, despite his ability to do so. We disagree.

The distal tip of Wright’s right thumb was partially amputated at the base of the thumb nail. After an unsuccessful attempt to reattach the thumb end, Wright’s treating physician removed the damaged part, and grafted a flap of groin skin onto the remaining part of the thumb. This operation restored 80-90% of Wright’s thumb length, although the grafted tip lacks sensation, differs in color from the rest of his thumb, and has no nail or bone supporting it.

Several physicians testified at trial or in deposition concerning the effect of this injury on Wright’s ability to resume roughneck work. After evaluating the evidence, the trial judge concluded Wright had a 20% permanent disability of his right hand and could not return to his former work at ODECO.

In well written reasons, the trial judge stated:

“Plaintiff has clearly sustained an impairment of his earning capacity. Most of his past employments were general manual labor at minimum wages and on an intermittent basis.
“This employment with ODECO is the penultimate of unskilled manual labor and plaintiff held his job continuously except for a minor illness since September of 1979. Plaintiff earned over $10.00 per hour and received excellent fringe benefits.
“Plaintiff is now susceptible to re-injury and is a danger to others who may have to depend upon his ability to perform his tasks free of any impairments to his hands as described above.
“It is more likely than not that he will be unable to return to the oil industry because of this claim and his permanent handicap, but he will be able to return to other less beneficial work. This will cause plaintiff to incur a diminution of future wages, namely the differential between guaranteed minimum wages which he will earn and those wages he could have reasonably expected to receive from the lucrative oil industry’”

Dr. Elliott Black, III, plaintiff’s treating physician, testified that Wright has marked reduction in the touch sensation of his thumb tip, but has maintained the importance of the thumb’s strength and mobility. He testified that Wright has a 20% impairment of function of the right thumb. Dr. Black was of the opinion, however, that plaintiff was capable of returning to roughneck duties after December 16, 1981.

Another physician, Dr. Claude S. Williams, also felt that Wright could return to work as an offshore roughneck. This physician, however, assessed a 15% loss of the function of plaintiff’s right hand. In his deposition, the expert stated that Wright would have a problem in fine pinching and “somewhat of a problem” in grasping large objects with his hand. He also stated that the graft makes Wright less aware of painful stimuli and might subject him slightly to cutting or burning his thumb “because he won’t get out of the way or something quite as quickly”.

Dr. T. Sterling Dunn, a physician who gives ODECO’s preemployment physicals, testified that Wright has “slight” reduction in the function of the hand, but could do all the duties of a roughneck. He would rate Wright as acceptable for roughneck work, but with a documented abnormality.

On the other hand, Dr. Bernard Manale, an orthopedic surgeon, has advised Wright not to return to roughneck duties. Dr. Manale rated Wright’s anatomic disability at 15-20% and the functional disability of his thumb at 40% (as if he didn’t have a thumb). This physician testified that Wright may not feel temperature extremes in his grafted thumb, and that chemicals may irritate it. He also pointed out that Wright “would be a risk of some sort” and could lose the thumb in a serious injury because the tissue does not have normal blood supply. Dr. Manale further noted that the grafted portion takes longer to heal and is more susceptible to infection. He indicated that Wright is “almost certain to receive injuries if he returns to heavy work”.

Randolph Howes, M.D., a plastic and reconstruction surgeon, likewise felt that Wright cannot return to offshore work because of danger of injury to himself or others. He stated that Wright’s hypersensitivity at the junction of the groin flap and the thumb body might cause him to “let go” when grabbing with this area of the hand. Dr. Howes assessed an anatomical disability of 20% to Wright’s hand.

Plaintiff testified that the junction of the groin flap and his thumb is sensitive, particularity to heat, cold and hard objects. Wright felt his thumb could be a safety impairment, and did not think he could return to roughneck work, which involves heavy equipment, wet conditions, and contact with chemicals.

According to Wright, the thumb does not toughen like the rest of his hand, and the skin of the graft becomes scabby and tender when wet. He has problems buttoning his clothes and tying his shoes, and had difficulty handling large sewer pipe in a job since this accident. He further pointed out that a roughneck’s duties must be done quickly, and he could not avoid bumping the hypersensitive thumb while working. Wright is currently unemployed.

Considering this evidence, we find no error in the trial judge’s findings of Wright’s permanent disability and inability to return to roughneck work.

We are not persuaded by ODECO’s argument that the court’s conclusion ignores the findings of the treating physician Dr. Black, and those of Drs. Williams and Dunn. The trial judge was free to evaluate the differing opinions of all the physicians, and was not bound by the testimony of any of them.

We further reject ODECO’s contention that plaintiff’s work history does not support a finding that he would have continued his employment as a roughneck. As noted by the trial judge, despite Wright’s earlier intermittent jobs, he had steadily worked for ODECO for nearly a year before this accident. It is not unreasonable, therefore, to infer that he would have remained in offshore work but for his disability. Accordingly, we find no error.

QUANTUM

The $129,701.00 award, with interest from date of judicial demand, includes the following elements:

1. Physical and mental pain and suffering Past, present and future $25,000.00
2. Mutilation, scarring, disfigurement and embarrassment to January, 1982 $15,000.00
3. Past loss of gross wages and benefits $14,701.00
4. Impaired earning capacity $75.000.00
TOTAL $129,701.00

ODECO raises several contentions concerning the excessiveness of the award. In answer to the appeal, plaintiff seeks an increase in the amount awarded for impaired earning capacity.

Impaired earning capacity

In awarding $75,000.00 for loss of future wages, the trial judge, citing state jurisprudence, considered the residual disability, the probability of loss of earnings over plaintiff’s work life expectancy to age 65, and the availability of reasonable employment opportunities suitable to him.

Under the established rule that federal law applies in actions under the Jones Act, ODECO contends the award for future wage loss should be denied because the trial judge erred in retying exclusively on Louisiana jurisprudence. We disagree.

Although we do not quarrel with the authorities cited by ODECO, the trial judge’s reliance on state authorities does not compel a change in quantum.

A lump sum award for lost earnings represents “only a ‘rough and ready’ effort” to restore the injured plaintiff to his former position. It involves an estimate of his “lost stream of future income” based on “after-tax” earnings for his “expected remaining career”, which is then factored to present value by an “appropriate discount rate”. Jones & Laughlin Steel Corp. v. Pfeifer, — U.S. -, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983).

Thus under federal law, the general principal in determining a seaman’s loss of earning power from injury is to place him in the same economic position as he would have been if his injury had not occurred, by determining what his annual earning power would have been but for the injury, deducting therefrom what it will be thereafter, multiplying the difference by the seaman’s expectancy, and discounting the product to the present value. See Conte v. Flota Mercante Del Estado, 277 F.2d 664 (2d Cir.1960). Moreover, the federal courts also use a retirement age of 65 years in awarding future loss of earnings. See Toddy v. Arkansas Valley Dredging Co., 470 F.Supp. 692 (E.D.Ark.1979); Chamberlain v. Shaver Transportation Company, 263 F.Supp. 47 (D.C.Or.1966).

The federal law, therefore, is similar to Louisiana law concerning this aspect of damages. Accordingly, whether federal or state standards are applied, the result is substantially the same in our case.

We likewise find no error in the quantum of the award. The trial judge has great latitude in awarding damages, and his judgment will not be set aside unless the award is clearly erroneous. See Goodpasture, Inc. v. M/V Pollux, 688 F.2d 1003 (5th Cir.1982), cert. denied — U.S. -, 103 S.Ct. 1775, 76 L.Ed.2d 347 (1983); Drake v. E.I. DuPont deNemours & Co., 432 F.2d 276 (5th Cir.1970). Despite an economist’s estimation of Wright’s future-wage loss at $265,000.44, the trial judge was not bound to accept this figure. Considering the evidence and the factors articulated by the trial judge, we conclude the $75,000.00 award is neither inadequate nor excessive.

Further, we are not persuaded by ODE-CO’s argument that the award should be reduced to a “net” amount after taxes.

Assuming that net, after tax income is the proper basis for an award for future impairment of earnings, there is no indication in the record that the trial judge in fact erroneously used gross income to arrive at the $75,000.00 figure. As stated in his written reasons, the award is simply “the differential between guaranteed minimum wages he [plaintiff] will earn and those wages he could have reasonably expected to receive from the lucrative oil industry”. We cannot say the trial judge abused his discretion. ■

Past Wage Loss

ODECO further contends that the $14,-701.00 awarded for past loss of gross wages, benefits and meal costs from September 26, 1981 to March 26, 1982, should be reduced to $6,399.00, based on plaintiff’s net income from September 26, 1981 to January 1, 1982.

At the outset, we find no error in the time period employed by the trial court. Although Dr. Black was of the opinion that plaintiff could have returned to offshore work after December 16, 1981, it is significant that this physician did not assign a disability or discharge him from his care on that date because he “wanted to continue seeing him to make sure he didn’t have any problems_” Dr. Black last saw Wright on March 4, 1982, when he noted that the “flap has taken nicely” and concluded Wright needed no more surgery. Plaintiff did not return to any form of employment until June, 1982.

An award for lost earnings should reflect the time necessary for recovery from the injury and a period of rehabilitation. See Sterling v. New England Fish Co., 410 F.Supp. 164 (W.D.Wash.1976). We cannot say that the period from the date of the accident until March 26, 1982 was unreasonable.

We do find merit, however, to ODECO’s contention that the past wage loss award should have been based on plaintiff’s net rather than gross income for the relevant time period. See Varlack v. SWC Caribbean, Inc., 550 F.2d 171 (3rd Cir.1977). The trial court’s award of $14,-701.00 was based upon the calculations of plaintiff’s, economist using plaintiff’s annualized gross base pay plus meals. Plaintiff's net pay for the same period, however, was $11,348.00 plus $1,350.00 for meals. Accordingly, we reduce the trial court's award for loss of past wages from the sum of $14,701.00 to the sum of $12,698.00, to reflect the prevailing federal rule.

Pain and Suffering; Disfigurement

We find no basis for reducing the awards totalling $40,000.00 for pain, suffering and disfigurement.

Wright’s injury, treatment, and mutilation are vividly described in the trial judge's written reasons, as follows:

“The elevator nearly severed the distal tip of plaintiff’s right thumb. His hand was packed in ice and he was flown to and admitted into West Jefferson Hospital where his thumb was reattached. The graft failed and the injured part was surgically amputated. The surgeon subsequently attached plaintiff’s thumb to his groin where it remained until October 26, 1981 while new groin skin tissue matured around the stump. During this period, the plaintiff experienced extreme and agonizing pain and suffering. All of his normal activities were dramatically affected by his immobility. On January 16, 1982, he was discharged from active medical care.”
“Plaintiff, who is right handed, has a disfigured, grotesque and deformed right thumb. The color and skin texture of the graft are clearly in contrast with the rest of the hand skin. The court observed that the plaintiff, while relaxed and sitting at the bench, clenched his thumb into the palm of his hand and tended to conceal his mutilation to avoid embarrassment. The area is sensitive to pain at the graft juncture but has lost all sensation over the graft or flap area, exposing him to danger because of his inability to perceive and distinguish extreme heat, cold or pressure. The palo-mar side of the grafted skin does not possess the non-slip ability of the other skin and is IV2 centimeters shorter. Because of these conditions, plaintiff avoids using his thumb and hand which has caused atrophy of his right arm. Because of the anesthesia of the flap, plaintiff’s ability to grasp, clasp, and clutch objects is impaired. The flap is flabby and mushy and is unsupported by normal bone.”

The testimony and photographic exhibits support these findings. We find no error.

Prejudgment Interest

Finally, we reject ODECO’s contention that the trial judge erred in awarding plaintiff interest from date of judicial demand rather than the date of judgment. An award of prejudgment interest is discretionary with the trial court in cases governed by the Jones Act and the general maritime law. See Havis v. Petroleum Helicopters, Inc., 664 F.2d 54 (5th Cir., 1981); Hirstius v. Louisiana Materials Co., Inc., 413 So.2d 611 (La.App. 1st Cir.1982), writ denied 415 So.2d 943 (La.1982). We find no abuse of discretion.

DECREE

For the foregoing reasons, the judgment is amended as follows to reflect a reduction in the award for past loss of wages and benefits:

The judgment in favor of plaintiff in the sum of $129,701.00 is reduced to the sum of $127,698.00. In all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

        . Philippe v. Browning Arms Co., 395 So.2d 310 (La.1981); Bize v. Boyer, 408 So.2d 1309 (La.1982); Holmes v. Texaco, Inc., 422 So.2d 1302 (La.App. 5th Cir.1982); Merrell v. State Through Dept. of Transp., 415 So.2d 660 (La.App. 3rd Cir.1982); Wilson v. Aetna Cas. & Sur. Co., 401 So.2d 500 (La.App. 2nd Cir.1981).

      . Norfolk W. Ry. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980); Barboza v. Texaco, Inc., 434 F.2d 121 (1st Cir.1970).


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Mrs. Mary Jane C. MECHE, Individually, as Natural Tutrix of and For the Use and Benefit of Her Three Minor Children, Alton Joseph Meche, Pamela Ann Meche, and Mary Rhodnoda Meche; James A. Meche, Tina Meche Midkiff and Patricia Meche Naquin, Plaintiffs-Appellants, v. GULF STATES UTILITIES COMPANY, Defendant-Appellee.
    No. 82-28.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Joe J. Tritico, and C. Jerre Lloyd, Lake Charles, for plaintiffs-appellants.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, Fred H. Sievert, Jr. and Robert S. Dampf, Lake Charles, for defendant-ap-pellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

Mrs. Mary Jane C. Meche, individually and as natural tutrix for her three minor children, and three major children of the decedent, brought suit against Gulf States Utilities Company to recover damages arising out of a fatal electrical contact accident which occurred on February 15, 1980. The incident resulted in the death of Leroy Meche, the respective husband and father of the plaintiffs. In addition, one of the survivors, Alton Joseph Meche, then sixteen years of age, sustained severe injuries consisting of burns to his head, right foot and arms; primarily the left hand, wrist and forearm.

Following a lengthy trial, the jury determined that Gulf States Utilities was not liable for the injuries either under ordinary negligence or strict liability.

On appeal, by a vote of two to one, we affirmed that determination. Meche v. Gulf States Utilities Company, 416 So.2d 1316 (3rd Cir.1982). The Supreme Court reversed the lower courts and held that Gulf States Utilities was liable. Meche v. Gulf States Utilities Company, 436 So.2d 538 (La.1983). The case is now before us for a determination of quantum to be awarded plaintiffs in accord with their respective damages resulting from the accident.

DAMAGES TO MARY JANE C. MECHE (Widow)

At the time of Leroy Meche’s death, he was forty-five years of age and his wife, Mary Jane C. Meche, was forty-three. They were married for twenty-seven years. Mrs. Meche testified that at the time of her husband’s death their relationship was a loving and compatible one. However, the record reveals that Mrs. Meche filed suit for separation in 1968. They subsequently reconciled and in September, 1979, Mrs. Meche again filed suit for separation and divorce. We find that although these domestic disputes do not negate her claim for loss of love and affection, they do serve as a mitigating factor.

During the year prior to Mr. Meche’s death, his annual income was $30,-714.00. An expert economist testified that the decedent’s work life expectancy at age forty-six years was eighteen additional years of participation. Seasonal problems in Mr. Meche’s trade were also considered by the expert and a conservative percentage deduction was made to account for the same in determining that decedent’s lost earnings would be $340,000.00. We refuse to rely exclusively on these statistics, but attribute great weight to well reasoned findings of the expert witness.

At the time of the accident, Mrs. Meche was left with three minor children, including the injured sixteen year old, Alton (Joey) Meche. No doubt, the death of Mr. Meche has caused Mrs. Meche much grief. Additional pain has been added because of the effects on her children. In Faulk v. Schlumberger Well Services, 412 So.2d 162 (3rd Cir.1982), this court awarded $100,000.00 for general damages to a widow who was separated from her husband at the time of his death. In Hardy v. State of Louisiana, 404 So.2d 981 (3rd Cir.1981) the court made an identical award. Accord, Brandon v. Dept. of Highways, 367 So.2d 137 (2nd Cir.1979), writ denied, 369 So.2d 141 (La.1979).

It is disputed whether Leroy Meche died instantly, or lingered in distress for some time. It was established at trial that he never regained consciousness, but that after mouth-to-mouth resuscitation he breathed on his own shortly. Plaintiffs suggest that an award for this suffering should be at least $25,000.00. However, where there is no indication that a decedent consciously suffered, an award for pre-death pain and suffering should be denied. Wakefield v. Government Employees Insurance Company, 253 So.2d 667, cert. denied, 260 La. 286, 255 So.2d 771 (1972). We therefore hold that Mrs. Meche is not entitled to any award for pain and suffering of her husband. The record is void of any evidence tending to show that Mr. Meche consciously suffered before his death following the accident.

It seems clear that the uncontested amount of the funeral expenses is $5,979.00. Therefore, this amount is an appropriate award.

The record reveals that medical expenses were incurred by Mrs. Meche for treatment of Alton Joey Meche and Leroy Meche following the accident. Physical therapy for Joey Meche was administered at St. Patrick’s Hospital resulting in expenses of $1,790.00 for which Mrs. Meche paid only $200.00. West Calcasieu-Camer-on Hospital performed emergency services for Joey and Leroy Meche resulting in expenses of $3,105.93 of which Mrs. Meche had to pay $410.25. Mrs. Meche should therefore be awarded $610.25 representing past medical and hospital expenses.

Accordingly, we hold that Mary Jane C. Meche is individually entitled to the following damages:

For loss of love, affection and companionship of her husband, grief, sorrow, and pain. $100,000.00
For loss of support from her husband . 275,000.00
For her husband’s funeral expenses . 5,979.00
Past medical and hospital expenses . 610.25
TOTAL. $381,589.25

DAMAGES TO ALTON JOSEPH (JOEY) MECHE

We now consider the award to be made to Mrs. Mary Jane C. Meche as natural tutrix of her then minor son, Alton Joseph (Joey) Meche. Joey was sixteen years of age at the time of the injury.

In a recent opinion, we awarded a fifteen year old boy $100,000.00 for the loss of his mother’s love and affection. Whittington v. Sowela Technical Institute, 438 So.2d 236 (3rd Cir.1983). While the facts of that boy’s relationship to his mother are not before us, there is little doubt that Joey Meche’s loss of his father was a trauma which must have exceeded or equaled that in Whittington, supra. Joey was extremely close to his father and dependent upon him.

Joey’s witnessing of his father’s death was a tragic experience. Further, his inability to pursue a career in carpentry due to his injuries is a personal reminder of his father’s death. In the recent case of Wilkinson v. Dept. of Transportation and Development, 434 So.2d 1155 (1st Cir.1983), the court upheld a trial court’s award of $300,000.00 to a minor child for loss of his father. However, in this case Joey Meche prays for $150,000.00. We feel the sum of $100,000.00 is an appropriate award in this instance.

Moreover, Joey, the victim of high voltage electrocution, suffered the following severe physical injuries:

1) third-degree burn over the apex of the head (an area three and one-half inches in diameter),
2) superficial second-degree burn of the upper portion of the right arm;
3) a deep second-degree burn of the palm of the left hand;
4) Minimal second-degree burn of the skin of the right side of the chest;
5) Deep third-degree burn of the inner aspect of the bottom part of surface of right foot;

Extensive surgical repair of deeply burned tissues to his left hand and arm, skin grafts and complex sophisticated surgery, causing great pain, were required in his case. The courts have frequently approved awards for pain and suffering of sufficient size to compensate for such extreme injuries.

A precedent similar to this case is McKowen v. Gulf States Utilities Company, 358 So.2d 675 (1st Cir.1978). There a sixteen year old boy suffered more extensive electrical high voltage burns and he, like Joey Meche, was transferred to the Shrine Burn Institute for treatment. He had multiple, painful surgeries, similar to the six major surgeries undergone by Joey. The plaintiff in McKowen, supra, recovered $650,000.00 for pain and suffering.

Joey Meche was confined to Calcasieu-Cameron Hospital for four days. While there he had dead tissue removed from his foot and holes drilled in his skull to provide for healing where the electricity volt exited his body. Joey had dead muscle remoyed from his arm in Galveston and two skin grafts performed. He was extensively traumatized mentally by the whole process. He suffers partial permanent brain damage, loss of function of his left hand, and mental depression. Plaintiff, Joey Meche, suggests that $650,000.00 for pain and suffering is a reasonable amount, and not in excess of established precedent. Nonetheless, we find that factual distinctions of McKowen and the present case result in an award of $475,000.00.

The permanent brain damage suffered by Joey Meche negates any reasonable possibilities of his pursuit of education. Nor is he able to continue his trade as a carpenter due to the physical incapacity resulting from the accident. However, there is evidence that Joey can perform simple labor skills as evidenced by his employment, following recovery, at Kroger’s Supermarket as a bag boy. Therefore, we will consider these factors in assessing his lack of future earning power. Reeder v. Allstate Insurance Company, 235 So.2d 111 (4th Cir.1970), writ refused, 256 La. 615, 237 So.2d 397 (1970).

It is undisputed that Joey was apprenticing as a carpenter when he was injured. Hilton Leger, a carpentry contractor, testified that journeyman carpenters made $13.65 an hour; apprentices made 60% of that, increasing 10% each year until they reached the full wage after four years. Utilizing those figures, Dr. Hohen-stein, an economist, testified that Joey Meche’s loss of income up to the time of trial would have been $6,100.00, the difference between the apprentice carpenter wage scale and the $400.00 he made bagging groceries at Kroger’s supermarket. Joey’s loss of future earnings, discounted for lump-sum payment at 12%, would allegedly total $498,200.00. If a 30% reduction factor were allowed for the possibility that he might obtain some job such as bagging groceries, the' lost future wages would be $348,740.00. We therefore conclude that the award of $325,000.00 is appropriate for Joey’s loss of income.

It appears from the record that Joey Meche may require further uncertain cosmetic surgery, medical treatment, and therapy in the future. However, we are not obliged to make speculative awards for this element of damages and considering that the record is void of specific costs and necessary future treatment, we are unable to determine an appropriate award.

Accordingly, we hold that Alton Joseph (Joey) Meche is entitled to receive, through his tutrix, the following damages:

Loss of father’s love and affection, grief, sorrow and pain. $100,000.00
Pain and suffering (personal). 475,000.00
Loss of income. 325,000.00
TOTAL. $900,000.00

DAMAGES DUE THE REMAINING FIVE CHILDREN (Loss of Father)

Defendant argues that pursuant to Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) the appellate court should raise the “low award to the lowest point of the damage range, which is appropriate when a damage award must be increased.” Defendant asserts that $25,-000.00 would be an appropriate award representing the low end of the established range of recovery for similar loss of parent. We agree with defendant’s construction of the law; however, Coco, supra, is inapplicable in the instant case, since we are not reviewing a trial court award for an abuse of discretion. We are determining, res nova, the damages due to plaintiffs.

Leroy Meche was close to his children. This is evident by the fact that he was fatally injured while helping one of his children install a television antennae.

Accordingly, we hold that Mary Rhodnoda Meche (6 years old) receive $50,-000.00 for loss of love and affection of her father and $40,000.00 for loss of support; that Pamela Ann Meche (10 years old) receive $50,000.00 for loss of love and affection of her father and $30,000.00 for loss of support; and that the three major children, Tina Meche Midkiff, Patricia Meche Naquin and James Anthony Meche, each receive $40,000.00 for loss of their father.

RECAPITULATION

Based on the above and foregoing law and circumstances, it is ordered adjudged and decreed that there be judgment rendered in favor of the plaintiffs and against the defendant, Gulf States Utilities, as follows:

To Mary Jane C. Meche, individually:
For loss of love, affection and companionship of her husband, grief, sorrow and pain. $100,000.00
For loss of support from her husband... 275,000.00
Funeral expenses . 5,979.00
Past medical and hospital expenses . 610.25
TOTAL. $381,589.25
To Mary Jane C. Meche on behalf of Alton Joseph (Joey) Meche
Loss of father’s love and affection, grief, sorrow, and pain. $100,000.00
Pain and suffering of Joey Meche 475,000.00
Loss of income. 325,000.00
TOTAL. $900,000.00
To Mary Jane C. Meche, on behalf of Mary Rhodnoda Meche:
For loss of love and affection of her father. $ 50,000.00
For loss of support from father... 40,000.00
TOTAL. $ 90,000.00
To Mary Jane C. Meche, on behalf of Pamela Ann Meche:
For loss of love and affection of her father. $ 50,000.00
For loss of support from father... 30,000.00
TOTAL.: $ 80,000.00
To Tina Meche Midkiff
Loss of her father. $ 40,000.00
To Patricia Meche Naquin
Loss of her father. $ 40,000.00
To James Anthony Meche
Loss of his father. $ 40,000.00

Legal interest shall be paid on the above awards according to law.

All costs, both on the trial level and on appeal, are assessed to defendant, Gulf States Utilities.

RENDERED.


author: PONDER, Judge.

text:
    KARL J. PIZZALOTTO, M.D., LTD. v. Dietrich WILSON.
    No. 14581.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    W. Luther Wilson, Baton Rouge, for plaintiff-appellee Karl J. Pizzalotto, M.D., Ltd.
    Roy Maughan, Baton Rouge, for defendant-appellant Dietrich Wilson.
    Before LOTTINGER, PONDER and CRAIN, JJ.
   PONDER, Judge.

When this case was previously before us, we affirmed the judgment of the trial court based upon a jury verdict that Dr. Pizzalot-to was not responsible in damages for the removal of defendant’s reproductive organs. Pizzalotto v. Wilson, 411 So.2d 1150 (La.App. 1st Cir.1983). While the Supreme Court agreed with our conclusion that Dr. Pizzalotto was not guilty of negligence or malpractice, it found he was guilty of battery in that he did not secure his patient’s express or implied consent to the removal of her reproductive organs. It remanded the case for the determination of damages resulting from the battery. Pizzalotto v. Wilson, 437 So.2d 859 (La.1983).

For a recitation of the facts we refer to the two written decisions.

Since we find from a preponderance of the evidence that the patient was already sterile, we decline to award damages for the removal of the ability to bear children. Ms. Wilson, however, is due damages for the battery, the removal of her organs without her consent, for the shock of the disclosure to her that her organs had been removed, and for the increment in pain, length of recovery and such elements resulting from the operation performed beyond the laparotomy to which she had consented and which she expected.

We have carefully examined the entire record again and find that an award of $10,000.00 will adequately compensate her for the actual damages she has sustained. This amount will be offset by the $880.00 award to Dr. Pizzalotto in his suit on open account.

For these reasons, judgment is rendered in favor of Ms. Wilson and against Karl J. Pizzalotto, M.D., in the sum of $9,120.00, plus interest and costs.

JUDGMENT RENDERED.

      . Both Dr. Pizzalotto and Dr. Rabalais who assisted at the operation testified unequivocally that Ms. Wilson was sterile. Dr. Jack Holden, a pathologist who examined the removed organs, whose testimony was introduced by Ms. Wilson, testified that chances of pregnancy would be most unusual. Dr. Richard Dickey, Ms. Wilson’s expert who never treated her, testified that she would have had a “twenty-five percent, maybe only ten percent” possibility of childbearing after medication and the conservative surgery of burning or cauterizing with electric current to free the adhesions in the organs.


text:
    RTL CORPORATION v. MANUFACTURER’S ENTERPRISES, INC.
    No. 14770.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.

      Nathan T. Gisclair, Jr., New Orleans, for plaintiff, RTL Corp.
    F. Barry Marionneaux, Plaquemine, for defendant, Manufacturer’s Enterprises, Inc.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiff appealed the trial court’s dismissal without reasons of its suit for the alleged balance owed for crane rentals. We affirmed the lower court’s action on the basis of accord and satisfaction. RTL Corporation v. Manufacturer’s Enterprises, Inc., 415 So.2d 412 (La.App. 1st Cir.1982). The Supreme Court reversed our decision and remanded the case to us for a determination of the reasonableness of the disputed charges. RTL Corporation v. Manufacturer’s Enterprises, Inc., 429 So.2d 855 (La.1983).

The only issue on appeal is the amount of the alleged balance owed by defendant.

Plaintiff and defendant entered into an oral contract in which plaintiff agreed to furnish, transport, install, maintain, and operate a 165 ton and a 140 ton crane. An hourly rate and a minimum daily usage rate were agreed to by the parties.

Plaintiff charged the defendant $143,-016.93 for all work and rentals. Defendant submitted a check for $107,023.68 and questioned those portions of the bill relating to: 1) excessive charges for the transportation and set up of the cranes, 2) labor charges for an inspector who never appeared on the job, 3) specific charges for crane time, and 4) charges for crane mats on a per shift rather than a per day basis.

Plaintiff then filed suit asking for the difference between the amount defendant paid and the total bill. After trial, the trial judge dismissed plaintiff’s suit.

Plaintiff initially argues that the charges covering the “move in-move out” on a “portal to portal” basis were accurately itemized and reasonable.

On this point, the Supreme Court stated: “Despite at least a tacit agreement on a portal-to-portal method, there is no evidence that the parties ever discussed the hourly rates for labor and accessory equipment involved in the transportation and assembly of the cranes. Neither did the periodic invoices by RTL specify the hourly rates and total hours of the laborers and accessory equipment. Accordingly, since the parties did not agree to a specific rate for the various services, they impliedly agreed to reasonable rates for the labor and equipment actually supplied by RTL for the transportation and assembly of the cranes.” (citations omitted) RTL Corporation v. Manufacturer’s Enterprises, Inc., 429 So.2d at 858.

Instead of paying “move in-move out” costs of $22,106.69 for the 165 ton crane and $17,140.72 for the 140 ton crane, defendant tendered $7200.00 for the former and $7080.00 for the latter to cover those charges, double the amounts that would have been charged by others on a fixed fee basis. While we feel that plaintiff’s charges were excessive, defendant has presented no evidence which would indicate a reasonable charge or' the unreasonableness of plaintiff’s charges under a portal to portal contract other than fixed cost estimates and bills indicating that those costs would range from $3540.00 to $4715.00 for a 150 ton crane. However, these are of no use in trying to determine reasonable charges under a portal to portal contract, which usually exceeds the fixed fee costs.

In light of these findings and the statement of the Supreme Court, we are constrained to find that the move in-move out charges were not unreasonable and plaintiff is'awarded the balance of $24,967.41.

Plaintiff next argues that the deduction by defendant for hours which it claims the crane or employees did not work is also in error. We agree.

Plaintiffs records for each day’s work were signed by one of defendant’s employees. The only evidence in defendant’s favor was a daily manpower report, which was unsigned, and the person responsible for its preparation was not called to the stand. The failure to call a witness who possesses knowledge of facts pertinent to the resolution of litigation and whose absence is not satisfactorily explained, results in the presumption that the witness’s testimony would be adverse. Tillman v. Canal Insurance Co., 305 So.2d 602 (La.App. 1st Cir.1974), writ denied, 307 So.2d 630 (La.1975). We find that defendant did not adequately rebut plaintiff’s evidence and plaintiff is entitled to $5498.80.

Plaintiff next argues that it should have been awarded $5015.04 for the cost of an inspector from Atlas Crane Rentals, who rented one crane to plaintiff. While defendant admitted it agreed to pay an inspector, evidence that the inspector never appeared on the job was introduced. Other supervisors on the job had not heard of the inspector and there was no evidence that he signed in on the job. We find that plaintiff is not entitled to this amount.

That last area of dispute, the $514.00 cost of crane mats, was conceded by the plaintiff.

For these reasons, the trial court’s judgment dismissing plaintiff’s claim is reversed on all issues except for charges for the inspector and for crane mats, and plaintiff is awarded $30,466.21. The costs of appeal are to be assessed against the defendant.

REVERSED IN PART AND AFFIRMED IN PART.

      . These charges covered the loading, transportation, mantling and dismantling of the cranes.

      . Under the portal to portal method, the fee consists of the lessor’s hourly charges for labor and equipment actually used to transport and assemble the cranes. A fixed cost agreement is one in which the parties agree in advance upon a total cost for transportation and assembly.

      . Although plaintiff argues that the figure deducted was $2395.00, a review of the evidence shows that the amount deducted for nonperformance of employees or cranes was $5498.80.


author: ALFORD, Judge.

text:
    Carroll MATHERNE v. HARTFORD INSURANCE COMPANY.
    No. 82 CA 0996.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Rehearing Denied Jan. 19, 1984.

      H. Minor Pipes, Sr., Houma, Robert J. Zibilich, New Orleans, for plaintiff and appellant.
    Gary M. Zwain, New Orleans, for defendant and appellee.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Plaintiff, Carroll Matherne, d/b/a Mark Boat Rentals, filed this suit for a declaratory judgment against defendant, Hartford Fire Insurance Company (hereinafter referred to as Hartford), seeking a resolution to a dispute which had arisen over the amount of the deductible in a policy of marine insurance defendant had sold to plaintiff. After a trial on the merits, the lower court held in favor of the defendant; plaintiff now appeals this decision alleging two specifications of error.

Plaintiff, d/b/a Mark Boat Rentals, was the owner of the crewboat “Ruby Jewel”. The record reflects that Hartford was the protection and indemnity insurer of Mark Boat Rentals with the “Ruby Jewel” listed in the schedule of vessels under the policy. The protection and indemnity liability limits were stated to be $100,000. In February, 1973, a worker on the “Ruby Jewel”, Jimmy Creel, slipped on oil on the deck and severely injured his back. As a result of this accident, Creel filed suit in the United States District Court for the Eastern District of Louisiana. Because plaintiffs business was not incorporated, and because of the serious nature of Creel’s injuries, Hartford felt that Creel’s damages might exceed the $100,000 liability limit and result in personal exposure for plaintiff. Thus, at the conclusion of discovery and shortly before the trial was to begin, Hartford succeeded in negotiating a settlement of Creel’s lawsuit for the $100,000 limits.

Prior to this settlement, a dispute arose between plaintiff and defendant as to the amount of the deductible in the policy defendant issued to plaintiff. Carroll Math-erne contended that the amount of the deductible was $2,500, Hartford contended that the amount was $25,000. To resolve the dispute, an agreement was entered into between plaintiff and defendant whereby Matherne deposited the sum of $25,000 into an interest bearing homestead account and Hartford paid to Creel $100,000 in return for a complete release and dismissal of the lawsuit. This declaratory action was then initiated between plaintiff and defendant to determine the amount of the deductible. La.C.C.P. art. 1872. As noted above, the trial judge held in favor of the defendant; the court declared the amount of the deductible to be $25,000. Plaintiff appeals.

Plaintiff’s two specifications of error can be combined into one argument: plaintiff alleges the trial judge erred when he failed to give sufficient weight and consideration to the testimony of plaintiff’s witnesses. Essentially, plaintiff argues that he was prejudiced by an incorrect invocation of the parole evidence rule.

At the trial of this matter, the parties presented only three witnesses. The plaintiff’s witnesses were Carroll Matherne and Phoebe Buquet, one-time secretary for plaintiffs company. Defendant’s witness was Robert Lavery, an executive with Hartford and at one time Ocean Marine manager for the defendant in the southeastern part of Louisiana. Six exhibits were introduced. The evidence contained in these exhibits formed the basis for the decision of the lower court and their analysis will also form the basis of our opinion.

The exhibit labeled Hartford 1 is a certified copy of a policy (numbered 43 OM 431978) defendant issued to an entity titled Statco, Inc. In this policy, the “Ruby Jewel” is listed in the schedule of vessels, the liability limit is $100,000 and the deductible is $2,500. Endorsement number 7 forming a part of the above numbered policy raises the deductible to $25,000 in return for a decrease in the premium. The effective date of this endorsement, just as the effective date of the original policy, is stated to be “12/12/72”. The policy period is one year.

The exhibit numbered Hartford 2 is a certified copy of policy number 43 OM 431991 which Hartford issued to Mark Boat Rental. This policy also has the “Ruby Jewel” listed in the schedule of vessels, a $100,000 liability limit and a deductible of $2,500 listed on the declarations page. However, this second policy also has an endorsement number 7 which raises the deductible from $2,500 to $25,000. The effective date of this second policy and endorsement was stated to be “12/12/72”, the same as the policy labeled Hartford 1 and the policy period is also one year. Apparently, this second policy was substituted for the first because Mark Boat Rental, not Statco, Inc., was the true owner of the “Ruby Jewel”. In any case, these exhibits establish that with endorsement number 7, the deductible was increased from $2,500 to $25,000. Based upon these exhibits and the testimony of Robert Lavery, the trial judge held in defendant’s favor.

In his brief, plaintiff argues that although he is not certain, he thinks a misapplication of the parole evidence rule prevented the lower court from considering the testimony of his witnesses. This is simply incorrect. The testimony of plaintiff’s witnesses was very brief and established only one point: That after searching through various bookkeeping records, Phoebe Buquet could not find any notation that plaintiff ever received a return premium from defendant reflecting a refund due to the increase in the deductible. Plaintiff simply testified that he could not remember the $2,500 deductible ever being changed. The record reflects that the trial judge listened attentively to this testimony. More importantly, the record also reflects that when defendant objected on the grounds that the testimony of Matherne was not the best evidence of what was contained in the policy, the trial judge permitted Matherne to answer the question posited to him. The plaintiff’s contention that the parole evidence rule was misapplied is rejected.

Of more serious concern to us is a discrepancy which exists between the declarations page of the policy issued to Mark Boat Rentals (43 OM 431991) and the contents of the policy itself, specifically endorsement number 7. On the first, or declarations page of the policy, immediately below the item numbered 4, and enclosed by dark lines obviously intended to highlight the item, appears the following heading: “Form Numbers of Endorsements forming part of policy at issue (Insert No.).” Below this heading is typed these words: “SP-39C SP-38 Endorsement # 1 through 5.” Of course the endorsement increasing the deductible is numbered 7. Thus, endorsements 6 through 8 are not noted on the declaration page of the policy, and as such, the question we must answer is whether endorsement 7 is validly part of the policy issued to Mark Boat Rentals.

In this regard it would be well to remember that the certified copy of the insurance policy admitted into evidence has endorsement number 7 attached to the main part of the contract. On the other hand, the plaintiff simply testified he could not recollect the deductible having ever been changed. He did not present any evidence contradicting the certified policy entered into the record, rather he merely testified that he never remembers having the deductible increased.

Additionally, on the last page of the protection and indemnity clause of the policy, which is the section of the contract Jimmy Creel sought and obtained recovery under, at line number 113 appears the following words: “Special Conditions — Warranties— Endorsements, Etc.” Below this line is a large blank space of about two inches, and then line 114 follows. Line 114 states, “Attached to and made part of Policy No. 43 OM 431991 [the policy at issue] of the Hartford Fire Ins. Co.”. Immediately following this page, the eight endorsements to the policy are attached.

It is important to note that endorsement number 7, similar to all other endorsements, was physically attached to and made a part of the principal contract of insurance filed in the record. Furthermore, the endorsement itself contains the following language:

This endorsement forms a part of Policy No. 43 OM 431991 issued by THE HARTFORD INSURANCE GROUP company designated therein, and takes effect as of the effective date of said policy unless another effective date is stated herein.

In this respect, we note La.R.S. 22:628 which provides in pertinent part:

No agreement in conflict with, modifying, or extending the coverage of any contract of insurance shall be valid unless it is in writing and physically made a part of the policy or other written evidence of insurance, or it is incorporated in the policy or other written evidence of insurance by specific reference to another policy or written evidence of insurance.

As noted previously, endorsement 7 was in writing and physically made a part of the main policy. Also, it was incorporated into the contract of insurance not only by its own terms, but more importantly, by the terms of the principal policy.

In this suit for a declaratory judgment, we must consider the facts, weigh the evidence, and then determine, as in other civil suits, whether the trial judge’s decision was “clearly wrong”. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Fortenberry v. Dixie Brewing Company, Inc., 368 So.2d 1240 (La.App. 4th Cir.1979). Finding that the policy in question was not ambiguous or subject to interpretation, the lower court held for the defendant. When one studies the only evidence submitted in this case, it is clear that the entire policy admitted into evidence included all endorsements, and given the testimony and exhibits in the record, we think it is safe to assume the plaintiff had the entire contract of insurance, including all endorsements, in his possession.

While it is well settled that any ambiguity in an insurance contract must be resolved against the insurer and in favor of the insured (Graham v. Equity National Life Insurance Company, 373 So.2d 988 [La.App. 3rd Cir.1979]; writ denied, 376 So.2d 319 [La.1979] and 376 So.2d 320 [La.1979]), it is equally true that contracts of insurance must be construed as a whole. While the labels and headings of the respective sections of the contract are pertinent, one section or its placement should not be construed separately so as to disregard other sections or placements. Benton Casing Service, Inc. v. Avemco Insurance Company, 379 So.2d 225 (La.1979); Harvey v. Mr. Lynn’s, Inc., 416 So.2d 960 (La.App. 2nd Cir.1982).

When we give the policy in question a fair and reasonable construction in keeping with the intention of the parties as expressed in the words of the entire contract of insurance, we think that endorsement number 7 should be given force and effect. The only truly objective evidence submitted in this case supports the trial judge’s decision. Reading the contract of insurance as a whole, a conclusion that the trial judge was not manifestly erroneous is warranted. As such, the lower court’s decision will be affirmed at appellant’s costs.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    L. Paul GIANFALA v. Michael P. ALLEMAND and Landry & Gary, A Medical Corporation.
    No. 82 CA 1071.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    L. Paul Gianfala, Lafayette, m pro. per.
    Kenneth V. Faherty, New Orleans, Denis J. Gaubert, III, Houma, for defendants and appellees.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This is a suit for defamation. From a judgment maintaining an exception of no cause of action and dismissing plaintiff’s suit, plaintiff has appealed.

The issue before this court is whether the defense of immunity based on an allegation of a qualified privilege can be raised by the peremptory exception of no cause of action?

We conclude it cannot.

No evidence may be introduced in support of or in opposition to the peremptory exception of no cause of action. La.Code Civ.P. art. 931.

Toomer v. Breaux, 146 So.2d 723 (La.App. 3rd Cir.1962) sets out the elements of proof in asserting the qualified privilege to a defamatory action, thus requiring the introduction of some evidence by defendant. Specifically, “good faith” must be proved by the person asserting the privilege.

In Trahan v. Ritterman, 368 So.2d 181 (La.App. 1st Cir.1979) this court held that the defense of qualified privilege must be specially pleaded.

Lastly, we have carefully reviewed the petition and find same to state a cause of action. In particular, the petition alleges malice.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed, and this matter is remanded for further proceedings. All costs of this appeal are assessed to appellee, further costs to await the final outcome in the trial court.

REVERSED AND REMANDED.


author: LANIER, Judge.

text:
    Marta R. CARBONELL v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Office of Mental Health and Substance Abuse.
    No. 83 CA 0186.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    Rehearing Denied Jan. 19, 1984.

      Antonio L. Carbonell, J.D., New Orleans, for appellant.
    E. Michael Harrison, Dept, of Health & Human Resources, Office of the General Counsel, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall, Director of the Dept, of State Civil Service.
    Before SHORTESS, LANIER and CRAIN, JJ.
   LANIER, Judge.

This is an appeal from a decision of the State Civil Service Commission (Commission) which affirmed the action of the Department of Health and Human Resources (DHHR) terminating a classified employee.

FACTS

We have carefully reviewed the entire record and found that the Commission’s opinion accurately sets forth the pertinent general facts of this case. Those facts are as follows:

1.Prior to August 21, 1979, appellant’s duty station was the New Orleans Substance Abuse Clinic (hereafter, NOSAC). Her official civil service allocation was Clinical Social Worker V. She functioned as the chief social worker and her duties included a limited social work case load, administering the Spanish speaking program, supervision of the day and evening supervisors, the Spanish personnel and an outreach worker.
2. On August 20, 1979, at 1:30 p.m., appellant was advised by Adrienne Mou-ledoux, the District Administrator and appellant’s immediate supervisor, that funding had been made available for the establishment of a full time out-patient clinic in St. Bernard which clinic would be housed in the St. Bernard Mental Health Clinic. Appellant was advised that she was being made the administrator of the new clinic to be set up and that effective August 21, 1979, her duty station was being changed to St. Bernard.
3. The change in duty station was confirmed in writing and the written notice was delivered to appellant’s office mail box at 4:00 p.m. on August 20, 1979. Appellant admitted that she received the memorandum on August 20, 1979 around 4:00 p.m. The written memorandum specifically advised appellant that her duty station was being changed effective August 21, 1979, and that she was to set aside time at 9:00 a.m. on August 21, 1979, “to discuss physical needs, community contacts, time schedules, etc.” No specific location was stated for the meeting.
4. Ms. Mouledoux’s intentions were that appellant meet with the St. Bernard Administrator for an hour on August 21, 1979, and thereafter meet with Charlotte Evans (the Jefferson Substance Abuse Clinic Administrator who had established the St. Bernard Clinic on an out-reach basis), Rita Raymond (a nurse at the St. Bernard Clinic) and herself at St. Bernard at 9:00 a.m. However, this information was not conveyed to appellant.
5. On August 21, 1979, appellant did not report to St. Bernard at 8:00 a.m., but went to the EEOC [Equal Employment Opportunity Commission] instead. At approximately 8:30 a.m., Ms. Moule-doux, (who was in her office at NOSAC with Charlotte Evans preparing to drive to St. Bernard) called the Administrator at the St. Bernard Mental Health Clinic who advised Ms. Mouledoux that appellant was not there. For this reason, Ms. Evans and Ms. Mouledoux did not drive to St. Bernard for the scheduled 9:00 а.m. meeting, but waited at NOSAC to see what appellant was going to do. б. At 9:00 a.m. on August 21, 1979, appellant arrived at NOSAC, so the meeting was held at NOSAC (although Ms. Raymond was not in attendance as originally planned.) During this meeting, appellant stated that she believed the change in duty station was illegal and retaliatory. Ms. Mouledoux advised appellant to respond in writing whether she was accepting or refusing the assignment.
7. At 4:00 p.m. on August 21, 1979, appellant delivered to Ms. Mouledoux a written response wherein appellant stated that she considered the transfer to St. Bernard to be retaliatory and illegal. Appellant advised that she was “herewith declining the assignment and taking the proper legal action.”
8. Appellant did not report to St. Bernard on the morning of August 22, 1979. Shortly before 10:30 a.m., Ms. Mouledoux telephoned Cal Bankston to report that appellant had refused the assignment and had not reported to St. Bernard that day. At 10:30 a.m., Mr. Bankston verbally suspended appellant for three working days. He also ordered appellant to report for duty at St. Bernard on August 27, 1979.
9. The letter of suspension dated August 22, 1979, which appellant admitted she received on August 24, 1979, specifically instructed appellant to report to St. Bernard at 10:30 a.m. on August 27, 1979. Appellant admitted that as of this time she knew her duty station was to be in St. Bernard.
10. On August 27, 1979, at 7:30 a.m., appellant’s husband delivered to Ms. Mouledoux at home a copy of a letter dated August 26, 1979, addressed to Cal Bankston, wherein appellant advised that she considered her transfer to the nonexistent St. Bernard Substance Abuse Clinic arbitrary, illegal, abusive and in retaliation for charges she had filed with the EEOC. Appellant advised that on August 27, 1979, at 10:30 a.m. she would report to the New Orleans Substance Abuse Clinic, which she deemed to be her only legal and official duty station.
11. At 10:30 a.m. on August 27, 1979, appellant again did not report to St. Bernard but reported to NOSAC instead. Mr. Bankston was there when she arrived; he asked appellant if she understood the seriousness of her refusal and again ordered appellant to report to St. Bernard. Appellant responded that she considered the order illegal and retaliatory and that she declined to comply with the order. At 3:30 p.m. on August 27, 1979, appellant was handed her letter of removal.
12. Appellant contends that she did not violate the August 20, 1979, memorandum because she understood that she had been given twenty-four hours in which to consider whether she would accept or refuse the assignment and therefore was not expected to have reported to St. Bernard at 8:00 a.m. on August 21, 1979. Appellant also contends that the memorandum did not specify a place for the meeting scheduled for August 21, 1979, at 9:00 a.m. and that she actually attended the meeting which was held at NOSAC. Appellant also contends that there was a difference between changing her duty station to St. Bernard and instructing her to report to St. Bernard and appellant argues that the August 20, 1979, memorandum did not specifically instruct her to report to St. Bernard on August 21, 1979.
13. The parties stipulated that Carolyn Kitchin, M.D., Assistant Secretary of the Office of Mental Health and Substance Abuse, had delegated appointing authority to Cal Bankston for employees in the Division of Substance Abuse.
14. Mr. Bankston and Ms. Mouledoux discussed appellant’s change in duty station and Mr. Bankston specifically authorized and instructed Ms. Mouledoux to assign appellant to St. Bernard. The decision was made around August 17,1979.
15. At the time appellant was assigned to St. Bernard, there was to be no change in her allocation or pay. As of August 21, 1979, when appellant was assigned to serve as the administrative head for the new clinic to be established, her new duties would still have warranted a civil service allocation of Clinical Social Worker V. The personnel action was going to be reported to the Director of the Department of State Civil Service as a change in duty station; however, when appellant advised that she would not comply with the instruction to go to St. Bernard, the change in duty station was not processed and the termination papers were processed instead.
16. Appellant was primarily assigned to set up the St. Bernard Substance Abuse Clinic because she had the administrative, personnel and social work experience that would have enabled her to get the new program started as expeditiously as possible. Her refusal to accept the change in duty station delayed the opening of the new clinic and forced several other people to assume additional responsibilities.

CONSTITUTIONALITY OF THE COMMISSION’S METHOD OF REVIEWING THE RECORD

(Assignment of Error 10)

The appellant contends that the record does not reflect that the Commission properly reviewed all of the evidence in the case as required by La. Const. of 1974, art. X, § 12 then in effect. In particular, the appellant asserts that the evidence was received by a referee appointed by the Commission and that the record does not contain a report from the referee or reflect that the individual members of the Commission heard the taped transcription of the testimony. The appellant cites as authority Wells v. Department of Corrections, Louisiana State Penitentiary, 417 So.2d 377 (La.App. 1st Cir.1982), writ denied, 420 So.2d 983 (La.1982), wherein this court held that the Louisiana Constitution required that the Commission must review the record of appeal, that mere access to the record is not sufficient and that the Commission’s opinion must reflect that a proper examination of the record has taken place. The appellant then maintains that if the Commission did not follow the proper constitutional procedure in rendering its opinion that this court is not bound by the Commission's conclusions and has the “power to render a decision based on the record of appeal...”.

The Commission’s opinion contains the following statement:

A public hearing was held in New Orleans before a referee appointed by the Commission. Testimony was taken on August 11 through 13, 1980; April 20 through 24, 1981, May 26 through 29, 1981; and June 8 and 9, 1981. The sound recordings of the proceedings, the documents offered into evidence and the record have been furnished to the Commission for its consideration, from which it makes the following findings.

This statement is ambivalent. It is arguable that it does not stand for the proposition that the members of the Commission properly examined the record (heard the taped testimony) before arriving at an opinion as required by Wells. However, in two cases decided by us subsequent to Wells, we cited Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975) and decided the cases instead of remanding even though the opinion of the Commission did not indicate that the members of the Commission properly examined the evidence. Wollerson v. Department of Agriculture, 436 So.2d 1241 (La.App. 1st Cir.1983); Department of Health and Human Resources, Office of Family Security v. Perry, 423 So.2d 1266 (La.App. 1st Cir.1982). In both of those cases, the entire record was before us as it is in the instant case. We shall follow the precedent set by Wollerson and Perry in this case.

THE DISCIPLINARY ACTIONS

(Assignments of Error 1, 2, 3, 4, 7, 8 and 9)

The appellant contends that her transfer from the New Orleans office to the St. Bernard office was illegal and in retaliation for charges that she filed with the EEOC. She further contends that since the order transferring her was illegal that she could not be required to obey it and cannot be lawfully disciplined for disobeying an illegal order.

La. Const. of 1974, art. X, § 8(A) provides as follows:

Disciplinary Actions. No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission. The burden of proof on appeal, as to the facts, shall be on the appointing authority.

Cause has been defined in the jurisprudence as conduct which impairs the efficiency of the public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged. Williams v. Department of Public Safety, Office of State Police, 415 So.2d 543 (La.App. 1st Cir.1982); Department of Public Safety, Office of State Police v. Rigby, 401 So.2d 1017 (La.App. 1st Cir.1981), writ denied, 406 So.2d 626 (La.1981); Sanders v. Department of Health and Human Resources, 394 So.2d 629 (La.App. 1st Cir.1980), writ denied, 399 So.2d 602 (La.1981). A decision by the Commission is subject to review by this court on “any question of law or fact”. La. Const. of 1974, art. X, § 12. Where the evidence in a disciplinary action is received by a referee and the Commission does not see or hear the witnesses, the standard for appellate review of facts utilized by this court is not that set forth in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) and Canter v. Koehring Company, 283 So.2d 716 (La.1973). When the Commission only reviews transcripts or listens to taped testimony, its ability to assess the weight of the evidence is no different from that of an appellate court. In such a situation, a less restrictive standard of appellate review of facts is applicable and we must determine only the sufficiency and the preponderance of the evidence. Wollerson, 436 So.2d at 1243-1244. Cf. F & S Offshore, Inc. v. Service Machine & Shipbuilding Corporation, 430 So.2d 1167 (La.App. 1st Cir.1983).

The Commission reached the following conclusions on the allegations of the appellant concerning the disciplinary actions:

In her request for appeal, appellant alleges that she was transferred without compliance with Civil Service Rule 8.15. The Commission concludes that appellant was not transferred because,, by definition, a “transfer” is “the change of an employee from a position in one department to a position in another department without change in probational or permanent status and without a break in service of one or more working days.” (Civil Service Rule 1.4.1) Appellant remained within the same department (Department of Health and Human Resources) and even within the same office thereof (the Office of Mental Health and Substance Abuse). Because this action was not a transfer, Civil Service Rule 8.15 could not have been violated since it was not applicable.
Appellant also alleges that she was reassigned without compliance with Civil Service Rule 8.16(a). “Reassignment” is defined as the “change within the same department of a probationary or permanent employee from a position in one class to another position in a different class, both classes of which have the same minimum rate of pay”. (Civil Service Rule 1.33). Appellant was to be changed from a Clinical Social Worker V in the NOSAC to a Clinical Social Worker V in the St. Bernard SAC. This personnel action was not a reassignment because appellant’s class of position was to have remained unchanged. Therefore Civil Service Rule 8.16(a) is inapplicable. The Commission concludes that the personnel action involved was to have been a change in duty station. Civil Service Rule 8.16(c) specifies: “An appointing authority may change the duty station of a permanent employee from one geographical area to another and any such change shall be reported to the Director [of the Department of Civil Service].... ” A change in duty station is at the discretion of the appointing authority. The only formality required is that it must be reported to the Director, but the Rule does not require that the Director be notified prior to the change in duty station. The Director does not have to approve a change in duty station; he merely records it. In this case, the change in duty station was never reported to the Director because the appointing authority became aware that appellant’s duty station was not going to be changed since appellant refused to go. To have reported the change under these circumstances would have been pointless.
The Commission also concludes that the change in duty station was taken by the proper appointing authority. “Appointing authority” is defined as “... the agency, department, board or commission, and the officers and employees thereof authorized by statute or by lawfully delegated authority to make appointments to positions in State service.” (Civil Service Rule 1.4). In this case, Dr. Kitchin, the Assistant Secretary of the Office of Mental Health and Substance Abuse, was the statutory appointing authority (La.R.S. 86:258), and she lawfully delegated this authority to Mr. Bankston, who in turn lawfully delegated his authority to Ms. Mouledoux to instruct appellant to report to St. Bernard. For these reasons, the Commission concludes that there was no violation of any Civil Service Rule in connection with appellant’s change in duty station.
Appellant argues that she could not be moved to any parish outside of Orleans Parish because she had restricted her employment availability to Orleans Parish on her job application and therefore, this was a condition of employment. The Court of Appeal rejected an identical argument raised in connection with a similar change in duty station. Bayhi v. Department of Health and Human Resources, 408 So.2d 395 (La.App. 1st Cir.1981).
Appellant also argues that there was no legal cause for the suspension and termination. The Commission concludes that the appellee has borne its burden of proving that appellant refused to comply with an order to change her duty station. The Department of Health and Human Resources is charged with, among other responsibilities, providing health care services to the citizens of this state. In . order to fulfill this responsibility, the officials at the Department of Health and Human Resources must be given the flexibility to assign employees where, in the officials’ judgment, their services are most needed and Civil Service Rule 8.16 specifically grants these officials this authority. An employee may not prevent an agency from fulfilling its responsibility (in this case to establish a new clinic) by refusing to comply with a change in duty station. For this reason, the Commission concludes that there was legal cause for appellant’s suspension and termination.

We have reviewed the record and the applicable law and find that the conclusions of the Commission are correct.

These assignments of error are without merit.

THE DISCRIMINATION CLAIM

(Assignments of Error 5 and 6)

The appellant contends that the disciplinary action taken against her was the result of discrimination against her because of her Hispanic national origin and because she filed several complaints with EEOC.

La. Const, of 1974, art. X, § 8(B) provides as follows:

Discrimination. No classified employee shall be discriminated against because of his political or religious beliefs, sex, or race. A classified employee so discriminated against shall have the right of appeal to the appropriate commission. The burden of proof on appeal, as to the facts, shall be on the employee.

Pursuant to Rule 13.10(a) and (h) of the Commission, a person in the classified service may appeal to the Commission when he alleges that he has been discriminated against or subjected to any disciplinary action because of his political or religious beliefs, sex, race or discrimination as defined in Rule 1.14.1. Rule 1.14.1 defines discrimination as the “consideration of religious or political beliefs, sex, race, or any other non-merit factors.” In an appeal to the Commission, the employee has the burden of proving discrimination. Sanders, 394 So.2d at 632.

The appellant alleged acts of discrimination commencing in 1976 and continuing until her termination. Extensive evidence was taken on the allegations of discrimination and the Commission’s opinion analyzed this evidence in great detail. This extensive analysis is attached to our opinion as unpublished Appendix No. 1. The Commission reached the following conclusions on the discrimination claim:

Had there have been no allegations of discrimination, appellant’s termination would have clearly been justified. However, appellant has proved certain charges of harassment. The preponderance of the evidence is to the effect that the Division of Substance Abuse was not retaliating against appellant or harassing her, but rather that there was a disruptive conflict between appellant and Ms. Mouledoux.
This appeal presents a situation that is by no means one-sided. Some of the agency’s actions were completely justified. On the other hand, some of the agency’s actions, appellant brought upon herself. The Commission concludes that the crux of this matter is the open hostility between Ms. Mouledoux and appellant. Put succinctly, the agency could no longer continue to function with these two employees in the same clinic. Every effort to resolve their differences failed. Therefore, the agency was forced to make a drastic decision. Mr. Bankston made this decision around August 17, 1979, when he finally realized that the conflict could no longer be endured. Mr. Bankston candidly admitted that sometimes employees who cannot accept supervision make good leaders. With the assignment of appellant to St. Bernard, Mr. Bankston would have solved two problems: he would have separated Ms. Mouledoux and appellant and the St. Bernard Clinic would be established and administered by the employee who was best qualified to assume these responsibilities. Appellant’s refusal to comply with the order to go to St. Bernard completely deprived Mr. Bankston of an acceptable solution to this problem. When appellant refused to go to St. Bernard, Mr. Bankston had two choices — to attempt to resolve the differences between Ms. Mouledoux and appellant in some other fashion or to terminate appellant. The Commission concludes that Mr. Bankston’s choice to terminate appellant was reasonable under the circumstances presented herein.
A personality conflict between two employees does not support termination unless the personality conflict results in impairment of the efficiency of the public service being rendered. Brickman v. New Orleans Aviation Board, 236 La. 143, 107 So.2d 422 (1958). The Commission concludes in this case, that the efficiency of the public service was severely impaired.
Appellant alleges that the agency was trying to get rid of her at any cost. The Commission observes that if this were the intent of the agency, appellant’s termination could have been accomplished relatively easily in November 1978. Appellant had exhausted her sick leave, was disabled from performing the duties of her position and those duties were such that the agency needed them performed without further interruption. Thus, appellant could have been terminated under the provisions of Civil Service Rule 12.10. This, the agency did not do, but rather, went out of its way to accommodate appellant.
Appellant was given a direct order from her superiors. The order was not illegal, immoral or in dereliction of appellant’s duties. Therefore, appellant was bound to follow that order. However, appellant did not follow the order, but took it upon herself to interpret the Civil Service Rules, concluded that the order was illegal and refused to comply. She should have complied with the order and therefore utilized the appropriate remedies available to her. Cage v. Department of Corrections,[] 418 So.2d 3 (La.App. 1st Cir. 1982).

We have carefully examined the entire record and, after applying the appropriate standard for factual review and the applicable law, have determined that the Commission’s rulings are correct. The appellant failed to prove that the disciplinary action taken against her was the product of discrimination.

These assignments of error are without merit.

CONSTITUTIONALITY OF RULE 8.16(c)

(Assignment of Error 11)

Rule 8.16(c) of the Commission provides as follows:

Change in Duty Station.
An appointing authority may change the duty station of a permanent employee from one geographical area to another and any such change shall be reported to the Director; and may change the duty station of a provisional or probationary employee from one geographical area to another with the prior approval of the Director.

The appellant contends that Rule 8.16(c) discriminates against permanent employees by requiring the prior approval of the Director of the Department of Civil Service to change the duty station of a provisional or probationary employee but not requiring such for a change in duty station of a permanent employee. Appellant contends there is no rational basis for this distinction and it is a violation of the equal protection provisions of the constitutions of Louisiana and the United States.

The law applicable to such a claim is accurately set forth in Williams v. Lallie Kemp Charity Hospital, 428 So.2d 1000, 1009-1010 (La.App. 1st Cir.1983), writ denied, 434 So.2d 1093 (La.1983), as follows:

The Louisiana and federal constitutions both require equal protection of the laws. U.S. Const. Amend. XIY; La. Const. art. I, § 3. When a claim is made that a law violates these provisions, and the claimant belongs to a class receiving disparate treatment, a determination must be made as to whether the law impinges on a “fundamental right” or operates to the disadvantage of some “suspect class.” If the law does either of the above, it will be subject to strict scrutiny and be declared invalid unless it is shown that a “compelling governmental interest” exists; if neither a suspect class nor a fundamental right is involved, the test is whether the discriminatory treatment is supported by any rational basis reasonably related to the governmental interest sought to be advanced by it.
Suspect classes are those so recognized by the Supreme Court, and they involve classifications based on race, alienage, national origin, or some other attribute held by discrete and insular minorities.
The number of fundamental rights is likewise finite. Those that have been recognized include free speech, voting, interstate travel, fairness in the criminal process, fairness in procedures concerning governmental deprivations of life, liberty or property, and privacy.

Permanent, provisional and probationary employees are not suspect classes recognized by the jurisprudence and there is no fundamental right for a civil service employee to have the Director of the Department of Civil Service approve his change in duty station. Since the appellant’s claim of unequal treatment does not involve a fundamental right or a suspect class, we must only determine if such treatment is supported by any rational basis reasonably related to a governmental interest.

The reasons for Rule 8.16(c) are set forth in the brief of the Commission filed in this court as follows:

It appears that the reason for such a distinction is to avoid giving an appointing authority an opportunity for circumventing the Civil Service Rules regarding certification for employment by the Department of State Civil Service of those applicants for employment within the State Civil Service. That is, before an appointing authority may place an applicant in a position within the State classified service he must obtain from the Department of State Civil Service a Certificate of Eligibles ranking those individuals by test score who have applied for employment for a particular position in the geographical area requested by the appointing authority. The appointing authority must choose their new employee from among the top five grade groups on that list. In metropolitan areas such as Baton Rouge and New Orleans, as well as others, the competition for a great many positions is keen due to the number of applicants such that a higher score than is required in a less urban area in which the competition is not so keen is necessary to be included within the top five grade groups. It was found that appointing authorities would circumvent Civil Service Rules by requesting a certificate for a position in a rural area after alerting the individual they desired to hire to submit an application for employment in that area. The applicant then had a much greater opportunity to be included within the top five grade groups for that geographical area such that the appointing authority could then choose that individual. There is, of course, a six month probationary period required by Civil Service Rule 9.1 before obtaining permanent status in the classified service. Following that appointment in the rural area the appointing authority could then change the duty station of that employee to the more urban area where the need for the work to be performed actually existed. Unfortunately, appointing authorities were found to have engaged in this practice such that Civil Service Rule 8.16(c) now reads as it does. The decision by the State Civil Service Commission not to require an appointing authority to justify to the Director of the Department of Civil Service before he changed the duty station of a permanent employee was an attempt to avoid interfering with managerial prerogative in mission accomplishment. Should such an employee be aggrieved by a change in duty station, that employee would have a right to contest the decision to change his duty station by perfecting an appeal alleging discrimination, which, in accordance with Civil Service Rule 1.14.1 includes a consideration of “religious or political beliefs, sex, race, or any other non-merit factor.”

These reasons (which we adopt as our own) show that Rule 8.16(c) has a rational basis reasonably related to a governmental interest. Rule 8.16(c) is constitutional.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the decision of the Commission is affirmed. Appellant is to pay all costs.

AFFIRMED.

      . The opinion of the Commission was filed on September 15, 1982. La. Const, of 1974, art. X, § 12 was amended by Act 883 of 1982, approved by the people of Louisiana on September 11, 1982, and became effective on October 15, 1982.

      . Department of Corrections, Louisiana State Penitentiary v. Cage, 418 So.2d 3 (La.App. 1st Cir.1982), writ denied 422 So.2d 164 (La.1982).


text:
    Memory S. TIDMORE v. GOUDCHAUX’S, INC., et al.
    No. 83 CA 0224.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1983.
    David Vaughn, Baton Rouge, for plaintiff-appellant Memory S. Tidmore.
    J. Wendell Clark, Baton Rouge, for defendants-appellees Goudchaux’s, Inc. and Fireman’s Fund Ins. Co.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Plaintiff-appellant, Memory Tidmore, filed suit against Goudchaux’s, Inc. and its insurer, Fireman’s Fund Insurance Company, for personal injuries she received in a purse snatching incident outside of appel-lee’s store. Appellant appeals the judgment of the trial court dismissing her demands. We affirm.

The facts of this case are not in dispute. Appellee has six retail establishments in Louisiana, two of which are located in Baton Rouge. On February 5,1981, appellant proceeded to appellee’s store located at 1500 Main Street in Baton Rouge. The Main Street location of Goudchaux’s has over one thousand parking spaces in the rear of the store, divided into some six parking lots. In addition, there are a limited number of parking spaces available on Main Street in the front of the store. It was shown at trial that Goudchaux’s does not own either the parking spaces on Main Street or the sidewalk adjacent to the front of the store where the purse snatching occurred.

At approximately 1:15 p.m. on the day in question, appellant parked her car parallel to the curb on Main Street in front of the entrance to the store. Appellant testified that it was raining, and thus, it took her several minutes to exit her vehicle, get her purse and open her umbrella. As appellant turned to walk around the rear of her vehicle, she noticed a black male approximately one-half block away walking down the sidewalk in her direction. Appellant reached the sidewalk and took several steps toward the store entrance when she felt a jerk on her purse and was thrown to the ground. Miss Tidmore then began to scream to attract attention and was subsequently taken into the store before being taken to the hospital. Appellant received serious injuries to her left leg requiring two operations and resulting in a permanent partial impairment of her left knee.

It was shown at trial that Goudchaux’s contracts with an independent guard service for outside security at the Main Street location. A uniformed guard is on duty at all times except between 7:00 a.m. and 7:00 p.m. on Sundays. In addition, a second uniformed guard is on duty from 3:00 p.m. until closing on all days the store is open. On Saturdays and during busy shopping seasons, this second guard comes on duty at 1:00 p.m. Managerial personnel in charge of security matters for Goud-chaux’s testified that these guards were instructed to patrol the parking lots and perimeter of the building at least once an hour.

In her first assignment of error, appellant maintains that the trial judge erred in not accepting Mr. Russell Cook, Sr., as an expert in the field of security. Mr. Cook is employed as a sergeant with the Louisiana State Police and a co-owner of Roco Systems, Inc., a security safety agency. The trial judge, after hearing considerable qualifying testimony, found that while Mr. Cook was eminently qualified in the field of security on governmental matters, he had no expertise insofar as security in the private sector.

The decision as to the qualification of a witness as an expert is within the discretion of the trial judge and will not be reversed absent a finding that it is clearly erroneous as a matter of law. Roberts v. Tiny Time Thrifty Check, 367 So.2d 64 (La.App. 4th Cir.1979); Maddox v. Percy, 351 So.2d 1249 (La.App. 1st Cir.1977), writ denied, 353 So.2d 1336 (La.1978). Mr. Cook testified that he had never been engaged in any security work for a retail establishment such as Goudchaux’s. The overwhelming majority of Mr. Cook’s security experience has been in designing and implementing security plans for state correctional institutions. Given the discretion afforded the trial judge in such matters, we find nothing clearly erroneous in the decision not to accept Mr. Cook as an expert.

Appellant next maintains that the trial court erred in holding that Goudchaux’s did not owe a duty to protect her from the purse snatching even though it occurred on property not owned by Goudchaux’s. Additionally, appellant maintains that the trial court erred in holding that Goudchaux’s owed her no duty tó warn of the dangers of parking near and entering through the Main Street entrance. We disagree.

As noted in Roberts v. Tiny Tim Thrifty Check, supra at 65:

A store owner is under a duty to take reasonable care for the safety of his patrons, but he is not the insurer of their safety. Anderson v. Clements, 284 So.2d 341 (La.App. 4th Cir.1973); DeHart v. Travelers Ins. Co., 10 So.2d 597 (La.App.Orl.1942); Matranga v. Travelers Insurance Co., 55 So.2d 633 (La.App.Orl.1952). It has also been stated that a proprietor of a public place has a duty to protect his patrons from injuries at the hands of third parties when it is within his power to do so. Cooper v. Ruffino, 172 So.2d 717 (La.App. 4th Cir.1965) (emphasis added).

Unforeseeable or unanticipated criminal acts of an independent third person do not impose a duty to protect business patrons. It is only when the owner or manager of a public place has knowledge, or can be imputed with knowledge, of a third person’s intended conduct that the duty to protect patrons is imposed. Pennington v. Church’s Fried Chicken, Inc., 393 So.2d 360 (La.App. 1st Cir.1980).

We fail to see how Goudchaux’s can be held to owe a duty to appellant to protect her from, or warn her against, the risk we all face using public streets and sidewalks. Even if we were to overlook the fact that this incident occurred on property not belonging to appellee, this case does not present a factual situation imposing a duty to protect or warn based upon knowledge, either actual or imputed. It was stipulated in the pretrial order that some twelve purse snatchings, including Miss Tidmore’s have occurred at this location. We note, however, that nine of these incidents occurred in 1976 and 1977, one occurred in 1979, and one occurred on December 3, 1980. Therefore, in the twenty-three months preceding the attack on Miss Tid-more, only one purse snatching took place. From these facts, we are unable to say that the criminal activities in this location were sufficient to impute knowledge on the part of Goudchaux’s of the offender’s intended conduct.

Therefore, for the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by appellant. ■

AFFIRMED.