text:
    INTERDICTION OF John David HINES. Geraldine James HINES, Mover in Rule—Appellee, v. Wilburn Ray HINES, Defendant in Rule—Appellant.
    No. 83-837.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.

      Camp, Carmouche, Barsh, Hunter, Gray & Hoffman, Geralyn Garvey and Gary L. Boland, Lake Charles, for defendant-appellant.
    Steven Broussard, McClain, Morgan & Savoy, R. Scott McClain, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

This appeal arises from a rule to show cause why the curator of an interdict should not be removed and the former eu-ratrix reappointed.

Mr. John D. Hines was interdicted in October, 1977, and his wife, Mrs. Geraldine James Hines was appointed curatrix. Her husband’s lifelong friend and business associate, Mr. Reggie Griffith, was appointed undercurator. In December, 1979, upon advice of previous counsel, Mrs. Hines voluntarily withdrew as curatrix, and Wilburn Ray Hines, the interdict’s brother, was appointed the new curator. Mr. Griffith remained undercurator. On February 17, 1983, Mrs. Hines filed the instant rule asking that the curator be removed and that she be reappointed in his stead. She alleged as grounds for removal of Wilburn Ray Hines that her designation as curatrix would be in the best interest of the interdict.

Following the proceedings, the district judge granted judgment in favor of Mrs. Hines. The trial court initially stated in reasons for the judgment that all parties involved demonstrated genuine concern for the health, welfare, and quality of life of John D. Hines, the interdict. The court further stated that although the present curator commendably administered his brother’s estate, it is proper for Mrs. Hines to assume her role as curatrix once again. The court accepted Mrs. Hines’ explanation for relinquishing the curatrixship and held that as John D.’s wife she has a superior right to serve as curatrix.

The court granted her request and appointed her curatrix; the court appointed Wilburn Ray Hines co-undercurator with Reggie B. Griffith. Wilburn Ray Hines, defendant in rule, devolutively appealed. He alleged that the trial court erred in removing him as the interdict’s curatrix; and in admitting a video tape of the interdict at trial on the rule. Mrs. Hines answered the appeal, contending that the judgment of the trial court should be modified insofar as it appointed Wilburn Ray Hines as co-undercurator. We find that it was error to admit the video tape but this merely constituted harmless error. For the following reasons we affirm the judgment of the trial court.

FACTS

In 1974 John D. Hines was diagnosed as having a chromophobe adenoma (a massive pituitary tumor) which caused organic brain damage. The subsequent intercranial surgery resulted in severe organic brain syndrome (traumatic senility) and also an endocronological imbalance, as well as other physical, mental, and emotional complications. In 1977, interdiction proceedings commenced because John D. Hines became incapable of caring for himself or administering his estate. Pursuant to judicial commitment, he has been institutionalized in various chronic care facilities since that time. At the hearing on this rule, Mrs. Hines stated that she had cared for her husband at home for three years following the surgery but due to his mental condition, his continuing medical infirmities, and a guarded prognosis of ever regaining his competency, Mrs. Hines sought his interdiction. Some time after instituting those 1977 proceedings, Mrs. Hines asked to be relieved of her duties as curatrix; she stated that she felt compelled to devote more time to the couple’s two minor children. The parties then effected a partition of the community property and established a separate property regime. After the appointment of her successor, Wilburn Ray Hines, a breakdown in communication occurred between Mrs. Hines, Mr. Wilburn Ray Hines, and their attorneys, centering around the issues of information about John D. Hines, and of the amount of child support payments. Initially, the parties negotiated an oral agreement for child support; however, the curator delayed the payment of child support. Mrs. Hines contemplated a divorce action as a device to obtain living expenses for the children and thereafter filed a petition for separation, alimony pendente lite, custody and child support. When Mrs. Hines discovered that the child support could be accomplished by petitioning the interdict's estate for expenses of the legal dependents, Mrs. Hines amended the request, and withdrew the petition for legal separation. See our discussion of this issue in Hines v. Hines, 419 So.2d 971 (La.App. 3rd Cir.1982), writ denied, 420 So.2d 980 (La.1982).

Mrs. Hines then pursued an action for removal of the curator in order to maintain the immediate family’s closeness and control over John D. Hines’ medical treatment and quality of life.

APPLICABLE LAW

The appellant contends that the trial court erred in allowing Mrs, Hines, plaintiff in rule — appellee, to introduce into evidence a video tape of the interdict which consists of hearsay testimony. Mrs. Hines counters that the video tape is only a depiction of the family, a variation of documentary or photographic evidence.

In our review of the record, though, we find that the video tape is indissociable from a deposition of the interdict, either in the nature of perpetuating testimony or propounding questions under oral examination. See La.C.C.P. Arts. 1431, 1439, 1440, and 1443.

La.C.C.P. Art. 1438 requires that written notice must be given by the party taking the examination to every other party to the action. Reasonable notice of taking the deposition is a prerequisite to its introduction into evidence at trial. Hollier v. Galtier, 430 So.2d 376 (La.App. 3rd Cir. 1983). However, any error resultant from admitting the video tape was harmless; the testimony adduced at trial accurately delineated Mr. Hines’ condition and served as the best evidence thereof. Any value derived from a video tape of John D. Hines as to his state of mind was merely cumulative and was not prejudicial to the opposing party. See La.C.C.P. Arts. 1631, 1632; Powell v. Parkview Estate Nursing Home, 240 So.2d 53 (La.App. 2nd Cir.1970); see also La.C.C. Arts. 31, 32, and 33.

La.C.C.P. Art. 4554 provides that the relationship between the interdict and the curator is the same as that between a minor and his tutor, with respect to the person and property of the interdict, except for codal provisions which specifically govern interdiction and curatorship. Besides the general cross-reference, this source article also contains specific references to the oath, inventory, security, method of administration, and other obligations.

La.C.C.P. Art. 4234 sets forth the causes for removal of the tutor which are analogical to the removal of a curator, following the directive of La.C.C.P. Art. 4554. La.C. C.P. Art. 4234 as amended by Act No. 429, Section 3, 1976, provides in pertinent part:

“The court may remove any tutor who is or has become disqualified; is a nonresident who has not appointed, or has left the state permanently without appointing, an agent to represent him as required by Article 4273; has become incapable of discharging the duties of his office; has mismanaged the minor’s property; has failed to perform any duty imposed by law or by order of court; or if such removal would be in the best interests of the minor.” (Emphasis ours.)

We stress this last sentence which was added by the 1976 amendment. The First Circuit explained the fundamental principle of supplementing the grounds for removal:

“... In adopting the amendment, we think the legislature intended that in addition to the specific grounds for removal listed in the article the court should also be vested with a certain degree of discretion and that the interests of the interdict should be paramount.”

In re Redmond, 351 So.2d 1256, 1257 (La. App. 1st Cir.1977), writ denied, 353 So.2d 1341 (La.1978).

We affirm the decision of the trial court on the discretionary premise that it is in the best interest of the interdict. The evidence adduced at trial shows that John D. Hines requires constant care and monitoring of both his person and property. The trial court found that the evidence indicates that Wilburn Ray Hines properly administered his brother’s medical treatment and financial affairs. However, the evidence supports the conclusion that the responsibility of tending to John D. Hines’ needs and administering his estate rightfully belongs to Mrs. Hines. La.C.C.P. Art. 4550 mandates that the spouse of the interdict possesses the prior right to be appointed curator:

“Within thirty days after the judgment of interdiction the court shall appoint a curator for the person interdicted.
By power of attorney, a competent person may nominate the curator of his person, of his property, or both, to serve should he be later interdicted. The court shall appoint the person nominated upon his furnishing security and taking an oath, as provided in Articles 4131, 4171, and 4554, unless he is disqualified, or, unless for some other reason, the court determines that the appointment would not be for the best interest of the interdict.
If the curator is not nominated by power of attorney, or if the nominee is not appointed, the spouse of an interdicted person has the prior right to be appointed curator.
If the interdict has no spouse or if the spouse does not apply for appointment as curator within ten days after the judgment of interdiction, the court shall appoint the applicant best qualified, personally, and by training and experience, to serve as curator. Article 4069 governs the appointment of a separate curator of the property and person.”

We do note, though, that the trial court recognized the need for financial expertise due to the size of the interdict’s estate, and accordingly, appointed Wilburn Ray Hines as co-undercurator.

Under the circumstances presented at trial, we find that the decision of the trial court is correct and therefore affirm the judgment. In re Swett, 286 So.2d 667 (La. App. 2nd Cir.1973).

All costs of these proceedings are assessed against the estate of the interdict.

AFFIRMED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Bobby G. BARKER, Plaintiff-Appellant, v. HOWARD TRUCKING, INC., et al., Defendants-Appellees.
    No. 83-841.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.

      Larry A. Roach, Lake Charles, for plaintiff-appellant.
    Frank W. Dawkins, of Mouton, Roy, Car-mouche, Bivins, Judice & Henke, Lafayette, for intervenor-appellee.
    Plauche, Smith & Nieset, Allen L. Smith, Jr., Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Bobby G. Barker, instituted this action seeking damages for personal injuries sustained by him in an accident which occurred on January 17, 1980. Following trial, the district judge determined that plaintiffs claim was barred by his contributory negligence and accordingly dismissed plaintiffs claims as to all defendants.

From this adverse judgment plaintiff has appealed claiming the trial court was in error insofar as it: (1) disregarded testimony to the effect that plaintiff suffered from a mental deficiency, and (2) found the plaintiff guilty of contributory negligence.

At the time of the accident plaintiff was working as a roustabout for the Land and Offshore Company. Plaintiff and other members of his crew had been dispatched to a well location in Beauregard Parish for American National Resources (hereinafter ANR), the owner and operator of the well being drilled.

The drilling rig on location was owned and operated by Goldrus Drilling Company. Howard Trucking Company is an oilfield and heavy equipment hauling business which had equipment and personnel on the job site. Defendant, Freeman Oilfield Services, had been contracted by ANR to supply a laydown machine and a three man crew to operate it in conjunction with “laying down” a string of drill pipe.

The job, to be coordinated among members of the drilling crew for Goldrus, the lay down crew of Freeman and the roustabout crew of Land & Offshore, was to pull the drill pipe out of the well, a joint at a time, unscrew each joint, remove it from the rig floor down to the pipe rack on the ground and then roll it out the pipe rack in layers where it would be subsequently loaded on trucks and hauled away from the location.

Generally, the lay down machine withdrew each joint of drill pipe or drill collar from the rig floor and released it to’ the pipe racks. Plaintiff's roustabout crew rolled, positioned and secured the pipe and drill collars on the pipe racks. On the very last drill collar, plaintiff was struck by a rolling drill collar as he attempted to step over it causing injury to his right leg.

Plaintiff filed suit against numerous defendants but all of the original defendants except for Freeman Oilfield Services were dismissed on motions for summary judgment. Subsequently, American Mutual Liability Insurance Company, the workman’s compensation insurer of Land and Offshore Services, intervened. The intervenor claimed it had paid workmen’s compensation to the plaintiff and was thereby subro-gated to any claim the plaintiff might hold against this defendant.

The district judge rendered written reasons for its judgment, concluding that plaintiff was not entitled to recover because of his own contributory negligence.

We find that the trial court correctly considered the evidence presented and we further find the trial court was not in error in finding the plaintiff’s claim barred by his own contributory negligence.

It is true that all persons are not held to the same degree of accountability as a normal healthy person. Powell v. Parkview Estate Nursing Home, 240 So.2d 53 (La.App. 2nd Cir.1970). However, the record does not support plaintiff’s allegations of his reduced mental capacity but rather convinces us that the trial court considered the evidence and applied the proper standard. It simply did not believe plaintiff’s version of the story. Instead, the trial court found the defendant’s evidence to be a more reliable account of what actually occurred.

The trial court in rejecting plaintiff’s version of the accident stated:

“Much of the testimony presented by plaintiff and his witnesses was conflicting, confusing and difficult to follow.”

Then the court discussing the evidence offered by the defendants stated:

“When plaintiff was struck by the drill collar he was standing approximately thirty feet away from the lay down machine. The collar had to roll that distance across the runner boards to strike him. He said that as he stood there on the pipe rack facing away from the machine he was aware that a collar was being laid down and he could feel something coming toward him.
By his own admission, plaintiff heard the lay down machine release a drill collar behind him and he felt it coming toward him on the runner boards. He knew the collar would roll against him if he did not turn around and step or jump over it, as he had been doing for hours. Yet, despite his position of danger and his knowledge of the danger, he did not turn around or do anything else to avoid the approaching collar until someone hollered. Then and only then did he turn around and try to step over the collar, but misgauged his step and it hit his right foot. This all occurred ten to fifteen minutes after the preceding drill collar had been laid down and at a time when plaintiff was just standing on the pipe rack facing the truck. Plaintiff’s attention was not then distracted or diverted because of any active involvement with or concentration on other duties. In standing there with his back to the machine, with knowledge that the lay down crew had previously released drill pipe or collars too quickly, he voluntarily and unnecessarily exposed himself to the danger which caused his injury. Also, as he stood there facing the end of the pipe rack, he failed to turn around or move to a position of safety after he was aware that the drill collar had been released and that it was rolling toward him. A person is bound to look and listen where such precautions are reasonably required to prevent injury to himself.
Contributory negligence is conduct on the part of a plaintiff which falls below the standard to which he should conform for his own safety and protection, the standard being that of a reasonable man under like circumstances. Here a preponderance of the evidence establishes that plaintiffs conduct fell below the standard to which he should have conformed in order to protect himself from harm and that conduct contributed to his injury. Accordingly, plaintiff’s demands against the defendant must be rejected.”

The above factual determinations of the trial court support its conclusions because it is well settled in our jurisprudence that contributory negligence is not presumed, but it must be proved as any other fact by a preponderance of the evidence. Lane v. Louisiana Power and Light Company, 161 So. 29 (La.App. 2nd Cir.1935), modified on other grounds, 164 So. 672 (La.App.1935).

Further, a factual determination of the trial court should not be reversed unless it is manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Here the trial court found that the plaintiff was not merely in the presence of danger but that he voluntarily and unnecessarily exposed himself to that danger. Such constitutes contributory negligence which bars the plaintiffs claim. See Williamson v. Gulf Coast Line Contracting Company, Inc., 301 So.2d 657 (La.App. 3rd Cir.1974).

The record substantiates the trial court’s finding that the plaintiff’s claim is barred by contributory negligence. We cannot say this finding is manifestly erroneous and we therefore leave it intact pursuant to the guidelines enunciated in Arceneaux v. Domingue, supra. Accordingly the judgment of the trial court is affirmed.

All costs of this appeal are assessed against the plaintiff.

AFFIRMED.

      . Comparative negligence does not apply in this case because the cause of action arose prior to the effective date of the new Louisiana provisions on comparative negligence. See 1979 La. Acts No. 431, § 1 and 2.


author: DOMENGEAUX, Judge. PER CURIAM.

text:
    John Earl ODOM, Plaintiff-Appellee, v. DIXIE TIE AND TIMBER COMPANY, et al., Defendants-Appellants.
    No. 83-885.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.

      Perrell Fuselier, Oakdale, Robert L. Sal-im, Natchitoches, for defendant-appellant.
    Kenneth Ray Rush, Oakdale, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOMENGEAUX, Judge.

Plaintiff, John Earl Odom, instituted this action seeking worker’s compensation benefits for injuries sustained by him in an accident that occurred on June 6, 1981. The trial judge found the plaintiff to be totally and permanently disabled and held the three defendants, Dixie Tie and Timber Company, Inc., Hendrick’s Sawmill, Inc., and American Standard Life and Accident Insurance Company, to be liable in solido for worker’s compensation benefits. The defendants, Hendrick’s Sawmill, Inc. and American Standard Life and Accident Insurance Company, have perfected this sus-pensive appeal from the lower court’s judgment.

In 1968 John Earl Odom became employed by Dixie Tie and Timber Company, Inc. (hereinafter Dixie Tie) as a common sawmill laborer. Dixie Tie was a hardwood mill which cut and produced railroad cross-ties and rough lumber. Mr. Odom worked under the direct supervision of Jack Shoe-make, owner of Dixie Tie, and his duties consisted of unloading logs, loading cross-ties for delivery, banding crossties, preparing loading tickets, and selling wood products produced at the mill.

On August 28, 1971, Dixie Tie sold the complete sawmill to Hendrick’s Sawmill, Inc. (hereinafter Hendrick’s) who continued to operate the mill. The sale was made on an installment basis with Dixie Tie receiving 70 cents per tie produced by Hen-drick’s. After the sale date, Dixie Tie performed, no sawmill operation, and existed only for the purpose of transporting all crossties produced by Hendrick’s.

Although the sawmill had been sold to Hendrick’s, Mr. Odom remained on the payroll of Dixie Tie and continued to perform the same sawmill duties as before the sale but following the date of the sale, Mr. Odom performed his duties using Hen-drick’s equipment and at the direction of Hendrick’s sawmill personnel. Occasionally, Mr. Odom was paid by both Hendrick’s and Dixie Tie.

John Earl Odom continued his sawmill duties until June 6, 1981, when his right hand was completely crushed while in the course and scope of his employment. On that date, Mr. Odom was attempting to remove the axle from a 40 foot van-trailer when the jacking mechanism malfunctioned causing the trailer to fall directly on Mr. Odom’s hand. The van-trailer was licensed in the name of Hendrick’s.

The issues presented for appeal are: (1) Whether American Standard Life and Accident Company provided workmen’s compensation insurance to Hendrick’s, and (2) whether Hendrick’s should be liable based on a theory that John Odom was their borrowed employee at the time of the accident, and (3) whether both defendants should be held liable for penalties and attorney’s fees.

A policy of insurance is a contract between the parties and is to be enforced in accordance with its terms when they are clear and unambiguous. Such a contract is to be given a fair, reasonable and sensible construction compatible with the apparent object and plain intention of the parties as expressed in the words of the agreement. Carolyn v. Aetna Casualty & Surety Company, 413 So.2d 1355 (La.App. 3rd Cir. 1982), and Ory v. Louisiana and Southern Life Insurance Company, 352 So.2d 308 (La.App. 4th Cir.1977).

The applicable policy provisions of the contract between Hendrick’s and American Standard Life and Accident Insurance Company provides:

“SECTION V EXCLUSIONS, LIMITATIONS AND REDUCTIONS
Benefits under this Policy shall not be payable for: (1) any loss resulting from accidents occurring before the Injured Person’s 18th birthday, or (2) any loss suffered by any person hereunder for Occupational Accidents only unless such loss occurs while the Person is actually engaged in the usual and customary duties of his employment as named in the application attached hereto, or (3) any loss suffered by any person for Occupational Accidents only while such Person is being transported to or from work, unless such Person is being transported by a motor vehicle used in the normal course of the Policyowner’s business as named in the application attached hereto, or (4) any loss for which benefits are payable under any Workmen’s Compensation Act or similar law, or (5) eye refraction or eyeglasses, or (6) gunshot wounds, or (7) prosthetic or orthopedic appliances, or (8) dental surgery, service or repair, except as provided under Section IV hereof, or (9) injuries intentionally inflicted on any person by himself of other persons, or (10) any procedure involving hernia or hemorrhoids, or (11) any treatment or service rendered in a facility owned or operated by any branch of Government.”
“SECTION X WORKMEN’S COMPENSATION NOT AFFECTED
This Policy is not in lieu of, and does not affect any requirement for coverage by Workmen’s Compensation Insurance.”

Additionally the following statement is contained in an application for insurance which was signed by a representative of Hendrick’s:

“3. I fully understand that this is not Workmen’s Compensation insurance as Key Life Insurance Company of South Carolina is not authorized to, and does not write that type coverage.”

The plaintiff argues that Section 5, Sub-part 2, could be construed in such a fashion as to support the trial court’s determination that this policy does provide worker’s compensation coverage. However, courts may not alter the clear terms of an insurance policy under the guise of interpretation. Schwegmann Brothers Giant Supermarkets v. Underwriters at Lloyd’s London, 300 So.2d 865 (La.App. 4th Cir. 1974), writ denied, 303 So.2d 172 (La.1974). Section 5, Clause 2 cannot be reasonably interpreted to provide for worker’s compensation coverage when the provisions right below it, i.e., Section 5, Clause 4, and Section 10 clearly show the policy does not contemplate such coverage. We hold that this policy does not provide for worker’s compensation coverage because when the language of an insurance contract is clear and unambiguous it must be enforced as written. Bowab v. St. Paul Fire & Marine Insurance Company, 152 So.2d 66 (La. App. 3rd Cir.1963), writ denied, 244 La. 664, 153 So.2d 881 (1963). To hold otherwise under the guise of interpretation would be -in effect making a new and different contract between the parties which this Court is without authority to do. See Jennings v. Louisiana & Southern Life Insurance Company, 280. So.2d 297 (La. App. 1st Cir.1973).

Next defendant Hendrick’s contends that it should not be held liable, claiming plaintiff, was not a borrowed employee at the time of the accident.

To determine the plaintiff’s occupational status one must thoroughly examine the relationship which existed between Dixie Tie and Hendrick’s.

After the sale of the sawmill to Hen-drick’s, Dixie Tie instructed Mr. Odom to perform all sawmill duties necessary to foster the production of crossties. Mr. Odom was further instructed to perform sawmill duties for Hendrick’s and receive his instructions from Hendrick’s personnel. As a result of these instructions, Mr. Odom performed 95% of his duties directly for Hendrick’s, using Hendrick’s equipment, and at the instructions of Hendrick’s personnel. Mr. Odom’s duties consisted of unloading logs to be used at Hendrick’s, loading crossties produced at the mill, binding crossties for delivery, and selling mill products at the instruction of Mr. Hendricks. In fact, Mr. Odom performed the same duties as he had done when the sawmill was owned by Dixie Tie.

Dixie Tie sold the sawmill to Hendrick’s in an attempt to avoid bankruptcy. Due to the corporation’s financial condition, Dixie Tie was forced to negotiate an urgent sales agreement on an instrument-workout payment plan. The sale contract basically stated that.Dixie Tie would receive payment for the sawmill if and only if Hen-drick’s was able to successfully operate the mill.

In determining whether a borrowed employee relationship exists this Court in Rapattoni v. Commercial Union Assurance Company, 378 So.2d 953 (La.App. 3rd Cir. 1979) stated:

“There are two general tests for the borrowed servant doctrine: (1) whose work was being performed and (2) who had control of the employee (plaintiff). Young v. Hearin Tank Lines, Inc., 176 So.2d 790 (3rd Cir.1965); Benoit v. Hunt Tool Company, 53 So.2d 137 (La.1951). As the Supreme Court pointed out in Benoit, supra, these tests are not infallible. Since Spanja and Dixon were rendered, the jurisprudence has rather consistently looked more closely at who had the control of the employee when he was injured rather than at whose work he was engaged in. See Dupre v. Sterling Glass and Paint Company, Inc., 344 So.2d 1060 (1st Cir.1977).”

With these principles in mind and under the rules of appellate review we do not find the trial court was clearly wrong in finding that the plaintiff was a borrowed employee of Hendrick’s. The facts adduced at trial show plaintiff was instructed to follow the orders of Hendrick’s personnel and actually did so. Dixie Tie’s President even testified that plaintiff would have been dismissed had Hendrick so requested. We find this to be sufficient control and no one contests the fact that plaintiff was working on Hen-drick’s equipment. Therefore Mr. Odom was under Hendrick’s control in performing work for them. Plaintiff was thus correctly held to be the borrowed employee of Hendrick’s.

Lastly plaintiff contends that the trial court erred in failing to hold Hendrick’s and American Standard Life & Accident Insurance Company liable for statutory penalties and attorney’s fees under the authority of La.R.S. 23:1201.2. Since we have held American Standard Life & Accident Insurance Company not to be liable under the insurance contract we need not address that issue as it pertains to it.

As to Hendrick’s liability, This Court has repeatedly held that a dispute between two employers as to which one owes compensation benefits is not a justifiable basis for withholding benefits to an injured employee. See Fontenot v. Town of Kinder, 377 So.2d 554 (La.App. 3rd Cir. 1979). But even in these cases the courts have held that the plaintiff has the burden of proving that each employer’s failure to pay was premised on the dispute and as such constituted arbitrary and capricious action. Here plaintiff did not show Hendrick’s failure to pay was premised on dispute. He offered no evidence as to why Hendrick’s failed to pay.

The trial court in its reasons for judgment stated:

“This court finds ... that plaintiff is entitled to statutory penalties and attorney’s fees against defendant, Dixie Tie and Timber, Inc., which attorney’s fees are set in the amount of $5,000.00. The plaintiff has not proved that the failure of the other two defendants to pay the worker’s compensation benefits was arbitrary or capricious.”

We agree with the trial court that the proof as to whether Hendrick’s acts were arbitrary is not in the record. Further, speculation is not a sufficient basis for an award of attorney’s fees and penalties under La.R.S. 23:1201.2 because this section being penal in nature must be strictly construed. See Smith v. Borden, Inc., 413 So.2d 701 (La.App. 4th Cir.1982), writ denied, 420 So.2d 171 (La.1982).

Whether an employer’s refusal to pay worker’s compensation benefits is arbitrary, capricious and without probable cause is a question of fact. Fazande v. New Orleans Public Service, Inc., 430 So.2d 225 (La.App. 4th Cir.1983). A Court of Appeal reviewing questions of fact can reverse a trial court only on a determination that the record establishes that the finding is manifestly erroneous. After a thorough review of the record we cannot say that the trial court was manifestly erroneous in failing to assess penalties and attorney’s fees against Hendrick.

For the above and foregoing reasons the judgment of the trial court is reversed insofar as it held American Standard Life & Accident Insurance Company liable. In all other respects it is affirmed. All costs of this appeal are assessed against defendant, Hendrick’s Sawmill, Inc.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

ON REHEARING

PER CURIAM.

In our original decision we held that the insurance policy in question did not provide worker’s compensation coverage. Now, plaintiff in an application for rehearing therefore suggests that we should clarify our decision to the effect that plaintiff is entitled to other benefits under the policy.

The only question of plaintiff’s entitlement under the policy had to do with worker’s compensation. Any other rights to which he may be entitled under the policy was not before us. We did not in our original decision, nor do we now express any opinion concerning any other aspects of the policy, or any other rights to which plaintiff may be entitled thereunder.

DENIED.


author: CUTRER, Judge.

text:
    Cheryl SIMMONS, Plaintiff-Appellee, v. SOWELA TECHNICAL INSTITUTE, Louisiana Board of Elementary & Security, State of Louisiana, Defendants-Appellants.
    No. 83-886.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.
    Writ Granted Feb. 4,1985.

      Dan M. Scheuermann, Cynthia D. Young and R. Bruce MacMurdo, Baton Rouge, for defendant-appellant.
    Robert L. Dow, Lake Charles, and L. Phillip Canova, Plaquemine, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.

       The record indicates the correct title of this defendant should be "Louisiana Board of Elementary and Secondary Education."

   CUTRER, Judge.

Plaintiff, Cheryl Simmons, was dismissed from the Sowela Technical Institute’s (Sowela) practical nursing program on May 9, 1975, for violating'the ethics and disciplinary rules applicable to nursing students. At plaintiffs request, an administrative hearing was held on August 27, 28 and 29, 1975, to review the dismissal. The director of Sowela presided over the hearing held pursuant to the provisions of the Louisiana Administrative Procedure Act (LAPA). LSA-R.S. 49:950 et seq.

The testimony of the administrative hearing was transcribed. The testimony, along with the exhibits, was introduced into the record by stipulation. A sizeable number of witnesses testified at the administrative hearing, which included fellow students, Sowela instructors and other personnel, and St. Patrick’s Hospital personnel. The testimony related to episodes of incidents of violations of Sowela’s disciplinary rules and rules of ethics by plaintiff during the time that she was a student at Sowela between June 1974 and May 1975. The nursing courses were taught to the students at Sowela and the clinical training for the students was received through St. Patrick’s Hospital pursuant to an agreement between Sowela and the hospital. The plaintiff testified at the hearing, denying some of the accusations and attempting to explain or justify others. The decision of the director sets forth his findings of fact and his conclusions of what the evidence showed. The director, in his decision, concluded as follows:

“Based thereon, the Director concludes that Cheryl Simmons did, on numerous occasions, abruptly leave her Pharmacology I and Fundamentals of Nursing I classes prior to their conclusion, and in a manner which was disruptive of the morale of the instructors and the operation of said classes; that during the clinical training portion of her education, Cheryl Simmons avoided having to handle patients by having other personnel take hourly urinary output and vital signs for her; that Cheryl Simmons failed to properly follow through with the care of patients under her charge; that Cheryl Simmons loudly complained and displayed a defensive attitude about hospital personnel while in the Pediatrics Unit at St. Patrick's Hospital so as to be heard by said hospital personnel; that Cheryl Simmons discussed and questioned with a fellow student the care and treatment which she had observed a physician provide the patients in the Obstetrics Unit of St. Patrick’s Hospital, this done in violation of both instructions given to her by her instructors at Sowela Technical Institute and the ethical standards established for the practical nursing profession of which she was cognizant.
“For the above and foregoing, it is the decision of the Director that there was sufficient substantiated grounds to justify the nursing staffs decision to drop Cheryl Simmons from the Practical Nursing program at Sowela Technical Institute.

Plaintiff filed suit against Sowela, Louisiana Board of Elementary and Secondary Education (BESE) and the State of Louisiana, alleging that the actions of defendants were arbitrary and capricious in her dismissal. She alleges that her damages were caused by Sowela’s breach of contract obligation or, in the alternative, by the negligence of Sowela. The trial judge, after reviewing the record of the administrative hearing, ruled that Sowela “did not have just cause for dismissing the plaintiff.” It was further held that such wrongful dismissal was a violation of an implied contract existing between Sowela and its student, the plaintiff. The trial court awarded plaintiff $21,000.00 damages. The defendants appeal and we reverse.

The plaintiff concedes that her cause of action in tort has prescribed. Defendants now argue that there was no contract between Sowela and plaintiff; the ten-year prescription is inapplicable and, therefore, plaintiffs action for damages has prescribed. However, we do not reach this issue, as a more fundamental ground exists for dismissal of plaintiffs suit. The trial court lacked subject matter jurisdiction to hear the case.

The wrongful discharge complained of by the plaintiff arose out of a discharge by the nursing staff in May 1975. A lengthy administrative hearing held in August resulted in a decision on September 9, 1975, affirming the discharge. By petition to the trial court, plaintiff sought to overturn the decision reached in the administrative hearing. The plaintiff also seeks damages as a result of the alleged wrongful discharge.

Plaintiffs suit for wrongful termination in district court is, in effect, a petition for review of the decision of the administrative hearing that Sowela had just cause to dismiss her. The parties stipulated as follows:

“The issue of liability in this suit will be limited to whether or not the plaintiff was wrongfully dismissed from the Sowela Technical Institute in 1975. ”

The addition of a claim for damages does not alter the nature of her request for a review of the administrative hearing.

The Louisiana Administrative Procedure Act (LSA-R.S. 49:964) provides the proper procedure for obtaining judicial review of an administrative adjudication. The relevant portions of the act provide:

“A. A person who is aggrieved by a final decision or order in an adjudication proceeding is entitled to judicial review under this Chapter whether or not he has applied to the agency for rehearing, without limiting, however, utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.
“B. Proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after mailing of notice of the final decision by the agency or, if a rehearing is requested, within thirty days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record.” (Emphasis added.)

The director of the administrative hearing rendered a decision on September 9, 1975. It is undisputed that plaintiff was notified of the decision against her. Under the provisions of LSA-R.S. 49:964, plaintiff was required to file a petition for review with the trial court within thirty days of notice of the hearing. Plaintiff did not file this suit for review of the administrative hearing and damages until May 7, 1980, almost five years after the administrative decision. This action for a review of the administrative adjudication was untimely filed with the district court.

The judicial review of administrative hearings provided by LSA-R.S. 49:964 is an appeal to the trial court and cannot be tried de novo.

In the case of Buras v. Board of Trustees of Police Pension, 367 So.2d 849 (La. 1979), the court stated that, when a trial court judicially reviews an administrative decision, its actions are as procedurally appellate. The court further stated as follows:

“These provisions defining the nature and scope of judicial review under the Administrative Procedure Act do not authorize a trial de novo in the reviewing court. To the contrary, it is clear that the review ‘shall be confined to the record’ as established before the agency. If the reviewing court were allowed to hear such matters de novo and substitute its judgment for that of the administrative agency, it would be usurping the power delegated by the legislature to the administrative agency. It should also be noted that the Administrative Procedure Act, properly complied with, operates to the advantage of both the parties and the courts. It enables the parties to resolve their disputes in a less cumbersome and expensive manner than normally encountered at a trial in court. At the same time, the courts are relieved of the time-consuming task of hearing the evidence. It further permits the administrative agency to weigh and evaluate the evidence with proper respect being given to its expertise in the matter. Additionally, it promotes the uniform application of the statute under which the agency operates. ” (Emphasis added.)

The timely filing of a request for judicial review or appeal is essential for the reviewing court to have jurisdiction in administrative determinations as in the case of other appeals. Baloney v. DHHR, Office of Family Services, 364 So.2d 203 (La. App. 1st Cir.1978). If such request for review or appeal is not timely filed, the reviewing court may take notice ex proprio motu of its lack of jurisdiction to adjudicate the matter. LaMartiniere v. Fringe Facts, Inc., 412 So.2d 1161 (La.App. 3rd Cir.1982).

The petition in the present case was untimely filed, thus, the trial court lacked subject matter jurisdiction to review the administrative hearing. The trial court judgment must be reversed and the plaintiffs suit dismissed.

For the foregoing reasons, the trial court judgment is reversed and plaintiffs suit is dismissed. Plaintiff-appellee shall pay the costs of the trial court and for this appeal.

REVERSED AND DISMISSED.

      . The parties stipulated in the trial court that plaintiff appealed the administrative decision to BESE September 9, 1975, and that, on April 30, 1979, BESE “authorized plaintiff to re-enter a nursing program at a vocational technical school under the jurisdiction of the Board.” The record does not contain any proceedings reflecting action by BESE.

        . Article 5 § 16(B) of the Louisiana Constitution of 1974 grants district courts appellate jurisdiction as provided by laws. Also see LSA-R.S. 49:964 for trial court review procedure.


author: CUTRER, Judge. DOMENGEAUX, J.,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. James W. BARBEROUSSE, Defendant-Appellant.
    No. CR83-890.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.

      Michael K. Dees, McHale, Bufkin & Dees, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Charles Richard, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

James W. Barberousse was indicted for the commission of a negligent homicide. He was accused of killing his sister, Bonnie Lou Barberousse Jenkins in violation of LSA-R.S. 14:32. He was convicted by a jury and, pursuant to LSA-C.Cr.P. art. 893.1, the trial judge imposed a sentence of five years at hard labor without the benefit of probation or parole. The defendant appealed his conviction and sentence alleging eight assignments of error. Two of the assignments have been abandoned on appeal, due to the defendant’s failure to argue or brief them. State v. Washington, 430 So.2d 641 (La.1983). The remainder will be treated after a discussion of the facts.

FACTS

The defendant, 43 years of age, lived in Lake Charles with his older sister, Bonnie Lou Jenkins, in a house owned by Bonnie’s paramour, Albert Fewell. Apparently, Bonnie was an unemployed alcoholic, and her only source of funds was from Albert., The defendant had asked Albert not to provide any money for Bonnie which might sustain her drinking habit. The defendant worked as a bartender at a local lounge (Fontenot’s) and feared losing his job because of his sister’s actions at times.

On January 30, 1982, in the early evening, the defendant was told by Albert that the latter had left Bonnie at Fontenot’s and that she was drinking rather heavily. Borrowing Albert’s vehicle, the defendant left to retrieve his sister. According to the defendant, when he arrived at Fontenot’s lounge, Bonnie was involved in an argument with a couple, one of whom was a rather large man. This caused the defendant to arm himself with a .38 caliber handgun kept behind the bar (apparently for use by the lounge’s employees).

During the trip home, Bonnie and the defendant engaged in an argument which resulted in her departure from the vehicle. She arrived, however, at Albert’s house only minutes after the defendant, where the argument ensued. At some point, Bonnie fell to the floor from a couch in the living room and called for Albert.

When Albert entered the room, the defendant pulled the loaded gun from his boot, cocked it and pointed it at Albert. The defendant testified that, by his actions, he was attempting to frighten Albert into not giving Bonnie any more money for alcohol. Albert stated that the gun was directed at him by the defendant, who told Albert not to call an ambulance as requested by Bonnie. No evidence was presented at trial as to why Bonnie wanted an ambulance. During this time, Bonnie remained on the floor. According to the defendant, he was lowering the gun and attempting to uncock it when it discharged. The single bullet entered Bonnie’s chest causing her death only moments later.

Albert testified that his back was turned when he heard the shot. At all times, the defendant has averred that the discharge was accidental and that he never intended to shoot Bonnie. One of the investigating officers testified that the fatal weapon had a “fairly light” trigger pull. Albert also stated that he believed that the defendant had loved his sister and that he helped her as he could.

We now proceed with a discussion of the assignments of error.

SUFFICIENCY OF EVIDENCE

The defendant first argues by this assignment that he was convicted of negligent homicide by evidence constitutionally insufficient to sustain a conviction. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Recently, in another negligent homicide case, also involving the use of a handgun, this court stated the applicable standard of review thusly:

“Under the law, we are called upon to review the evidence in the light most favorable to the prosecution; only if we then find that any rational factfinder could not have found that the State proved every element of the crime beyond a reasonable doubt can we supplant the factual findings of the lower court. ....”

State v. Deville, 451 So.2d 129, 132 (La. App. 3rd Cir.1984).

Negligent homicide is defined as “the killing of a human being by criminal negligence.” LSA-R.S. 14:32. The definition of criminal negligence is set forth in LSA-R.S. 14:12 as follows:

“Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances. ”

The defendant argues that the extraordinarily high blood alcohol level found in the victim could have caused her death, such that she was not “killed” by the defendant’s criminal negligence. The physician, Dr. Stanley Smith, who performed the autopsy on the victim, stated that her blood alcohol level was “452 mgs per cent (100 mgs. per cent considered to be legal intoxication).” Dr. Smith testified that this level exceeded the levels generally associated with possibly fatal comas — 350 to 400 mgs percent. Further, Dr. Smith stated that the victim could have died of toxicity from the amount of alcohol in her system. It is this testimony which the defendant seeks to utilize to attack the State’s proof as to Bonnie’s death. However, such an attack is likewise defeated by Dr. Stanley’s unequivocal testimony that, notwithstanding her drunkenness, the victim’s death directly resulted from the gunshot to her chest, causing a fatal loss of blood.

Undeniably, the defendant in the instant case deliberately pulled a loaded .38 caliber revolver; cocked it; and pointed it at another human being, supposedly to frighten that person (Albert) into complying with the defendant’s request to desist in providing drinking funds for Bonnie. The gun discharged, the bullet striking Bonnie in the chest. The defendant has constantly averred that he did not intend to shoot his sister. Under these circumstances, a classic case of negligent homicide has been established by the State. The defendant’s actions, in handling the gun, amounted to criminal negligence which resulted in the killing of Bonnie Jenkins.

Accordingly, this assignment has no merit.

ADMISSIBILITY OF PHOTOGRAPHS

' In this argument the defendant contends that a reversible error occurred when the trial court allowed into evidence, over defendant’s objection, certain photographs of the victim and the scene of the crime. The defendant alleges that the photographs were gruesome and introduced by the State for the sole purpose of inflaming the jury against the defendant. The trial judge found the pictures not to be gruesome and, therefore, not prejudicial to the defendant.

We are in accord with the lower court’s finding. Our Supreme Court answered a similar contention as follows:

“It is well established that the test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. Photographs of the body of a deceased victim have generally been held relevant to prove the corpus de-licti; to corroborate other evidence of the manner in which death occurred; to establish the location, severity and number of wounds; and to establish the identity of the victim. State v. Gas-kin, 41^ So.2d 1007 (La.1982); State v. Lewis, 353 So.2d 703 (La.1977). After examining the photographs in question, we do not consider that they are gruesome. Moreover, they were relevant to prove the identity of the murder victim and to corroborate the testimony concerning the manner in which the victim was killed. Accordingly, the probative value of the photographs outweighs any possible prejudicial effect.

State v. Perry, 420 So.2d 139 (La.1982), certiorari denied, — U.S. -, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983). The trial court correctly admitted the photographs into evidence.

This assignment lacks merit.

ENHANCEMENT OF THE SENTENCE UNDER LSA-C.CR.P. ART 893.1

Three assignments concern the trial court’s use of LSA-C.Cr.P. art. 893.1 to enhance the sentence of defendant. We shall consider these assignments together.

This provision, which became effective in 1981, enhances certain penalties as to felonies committed with the use of a firearm. Article 893.1 reads as follows:

“When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
(1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
(2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
“Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole. ”

Negligent homicide is deemed a felony, because it subjects those found guilty of that crime to the possibility of imprisonment at hard labor. LSA-C.Cr.P. art. 933; LSA-R.S. 14:2. The maximum term of imprisonment which may be imposed upon those convicted of negligent homicide is five years at hard labor. LSA-R.S. 14:32. Suspension of sentence is not prohibited by that article. Therefore, under art. 893.1 the trial judge in the instant case was required to impose a sentence of five years at hard labor without the benefits of probation or parole, if he made the finding that a firearm was used in the commission of the negligent homicide of Bonnie Jenkins. The evidence reflects that a firearm (.38 caliber pistol) was used in the commission of this felony and, therefore, that the trial court correctly applied art. 893.1.

Next, we address the defendant’s argument that he should have been granted (as he requested) a separate hearing on the applicability of art. 893.1, since the trial court must make a finding that a firearm was used. A similar contention was recently addressed by the First Circuit, which appropriately stated the following:

"[Defendant] contends further the court should have held an adversary hearing on whether or not a firearm was used in the commission of the offense charged. A sentencing court, as was done here, may draw from extensive sources of information and the traditional rules of evidence are not bars to consideration of otherwise relevant information. State v. Washington, 414 So.2d 313 (La.1982). In a multiple offender proceeding the trial court has the right to take judicial notice of any prior proceeding which was a part of the same case it tried previously. See State v. Martin, 400 So.2d 1063 (La. 1981), on rehearing. We apply the same rule to the analogous situation of an enhancement proceeding for the use of a firearm.

State v. Moore, 442 So.2d 726 (La.App. 1st Cir.1983).

We, likewise, see no need or justification in this case for requiring a separate hearing as to the trial court’s finding regarding the use of a firearm. The sentencing judge presided at the trial, which conclusively reflected that a firearm caused the victim’s death. The defendant argues that the analogy drawn from the multiple offender statute (R.S. 15:529.1), which expressly requires a hearing regarding prior convictions of the defendant, should equally necessitate a separate hearing for application of art. 893.1.

LSA-R.S. 15:529.1(D) expressly requires a hearing, while art. 893.1 makes no such requirement. Obvious reasons for this distinction exist. In the former situation, there is the need to receive evidence of prior convictions necessary to impose the sentence strictures of R.S. 15:529.1 — evidence which likely was not presented at the trial on the defendant’s latest conviction. The evidence at trial in the instant case, however, clearly established the defendant’s use of a firearm. Under these facts, we can see no need to impose a separate hearing the Legislature deemed necessary when it created art. 893.1.

The next argument by the defendant as to art. 893.1 is that the trial court erred in applying it, as the Legislature, allegedly, never intended this enhancement provision to apply to negligent homicide crimes, since there is no criminal intent involved in this felonious act. This court recently had cause to examine the legislative intent behind art. 893.l’s enactment, and the following was stated:

“The purpose of the article is to enhance penalties for gun-using felonies. The enhancement includes a prohibition against suspension of sentence. The Legislature obviously does not want gun-using felons to get suspended sentences. However, the Legislature is content to let the gun-using felon escape the enhancement of article 893.1 if suspension of his sentence is already prohibited by some other law. That appears to be why it made the article applicable to gun-using felonies only when suspension of sentence is not otherwise prohibited.
“The significance of the italicized language in the application of the article is indicated by the number of times in our law when suspension of sentence will be found to be ‘otherwise prohibited. By means of R.S. 14:95.2, for ex ample, the Legislature has provided an enhancement penalty of two additional years without benefit of suspension when a firearm is used in the commission of certain felonies. When article 893.1 was made the law in 1981, the Legislature was aware that it had already provided an enhanced penalty for the use of a firearm in certain enumerated felonies by means of R.S. lj:95.2, and that the additional penalties therein imposed could not be suspended. The Legislature was also aware that a number of other potentially firearm-using violent felonies are on the books but the penalty for some of these already prohibits the suspension of sentence, armed robbery being just one example. Also, in felony cases suspension of sentence is permitted for first convictions only under C.Cr.P. art. 893, and suspension of sentence is thereby automatically unavailable for any second offense felon. It is reasonable to suppose that these are the reasons why the Legislature made article 893.1 applicable only to felonies where the suspension of sentence was not otherwise prohibited. Article 893.1 does not apply to these offenses where suspension is already prohibited but as to all other felonies where a finding is made that a firearm was used in the commission of the offense, the article applies.
“Care was taken by the lawmakers to assure that no gun-using felony would remain subject to a suspended sentence. Article 893.1 is aimed at achieving that result. The Legislature saw no need to amend each individual felony statute, as it might have done, to provide an enhanced penalty. It chose to accomplish that purpose by a single enactment in the form of article 893.1.
(Emphasis in original.)

State v. Victorian, 448 So.2d 1304 (La.App. 3rd Cir.1984), on rehearing, writ denied, 452 So.2d 167 (La.1984).

Article 893.1 provides no indication that it intended to exclude from its scope offenders who committed negligent homicide. The provision quite simply states that it applies to felonies committed with the use of a firearm when suspension of sentence is not otherwise prohibited. Negligent homicide is a felony, which is committed when a human being is killed by the criminally substandard action of another. We can see no reason for disregarding the clear letter of the law as created by our Legislature in art. 893.1; under the law, violators of R.S. 14:32 who utilize a firearm in that violation are subject to the enhancement provisions of art. 893.1.

Also raised by the defendant is the allegation that art. 893.1 violates his equal protection rights in creating a constitutionally infirm class distinction between criminals who use firearms and those who do not. This court has previously addressed a similar claim and failed to find that armed criminals constituted a “protected ‘class of persons.’ ” State v. Adams, 446 So.2d 355 (La.App. 3rd Cir.1984). Further, the court in Adams recognized that the legislative intention in controlling firearm abuse was legitimate in the creation of art. 893.1. We agree.

The defendant also argues that his due process rights were violated by the State’s failure to include art. .893.1 in a bill of information, such that he was unconstitutionally deprived of notice and a chance to defend against the impending effect of that provision. Although we note that ample evidence exists that the defendant did have actual notice of the forthcoming application of art. 893.1 we decline to decide this issue on that basis.

In State v. Roussel, 424 So.2d 226 (La. 1982), our Supreme Court rejected a defendant’s argument that he was given inadequate notice and opportunity to defend against the imposition of LSA-R.S. 14:95.2, which mandates an additional penalty for perpetrators of certain crimes committed with the use of firearms or explosive devices. In rejecting that defendant’s argument that a bill of information should be required charging one under R.S. 14:95.2 before punishment may be imposed, the court held that no separate crime was created by R.S. 14:95.2 and, therefore, no bill was required.

That rationale applies with equal (if not greater) force to the instant case, as art. 893.1 also does not create a separate crime; it merely enhances a possible penalty and restricts the trial judge’s sentencing discretion. State v. Victorian, supra. Revised Statute 14:95.2 goes beyond that by imposing a separate and additional penalty. If violators of the latter provision are not entitled to notice of its impending application by bill of information, or otherwise, then a fortiori a formal notice of the applicability of art. 893.1 is not required.

The final constitutional attack on art. 893.1 by the defendant consists of his contention that it imposes cruel, unusual and excessive punishment. The multiple offender statute (R.S. 15:529.1) has repeatedly withstood similar attacks. See, e.g., State v. Lee, 364 So.2d 1024 (La.1978), and the cases cited therein. The legislative intent of that statute is to deter the acts of those who have shown repeated criminal propensities. The enhancements available under R.S. 15:529.1 may significantly exceed the penalty set forth in the latest crime committed.

Likewise, art. 893.1 (in less severe means) furthers the legitimate legislative end of restricting the abuse of firearms by enhancing the penalties of those who criminally use these weapons. No constitutionally infirm punishment is imposed upon the defendant in this case by the application of art. 893.1.

For all of these reasons, these assignments have no merit.

WHETHER THE SENTENCING GUIDELINES OF C.CR.P. ART. 894.1 ARE APPLICABLE

By this final assignment the defendant alleges that the trial judge erred in failing to follow the sentencing guidelines of C.Cr.P. art. 894.1. That article aids the trial judge in the exercise of his sentencing discretion. It has no application to a case wherein the trial judge’s discretion has been supplanted by a mandatory sentence. This occurred in the instant case, and an attempted application of art. 894.1 would have been nothing more than a meaningless exercise. This assignment, therefore, has no merit.

For all of the aforementioned reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

DOMENGEAUX, J.,

concurs. I agree that this is a clear affirmation, however, I do not agree that Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), should apply to Louisiana criminal appellate review. See my concurring opinions in State v. Gatson, 434 So.2d 1315 (La.App. 3rd Cir.1983); and State v. Anderson, 440 So.2d 205 (La.App. 3rd Cir.1983).

      . LSA-R.S. 14:32 provides:
      "Negligent homicide is the killing of a human being by criminal negligence.
      "The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence.
      "Whoever commits the crime of negligent homicide shall be imprisoned with or without hard labor for not more than five years, fined not more than five thousand dollars, or both.”

      . We, of course, have not been called upon to address the highly unlikely situation wherein the State requests application of art. 893.1 during sentencing, although no competent evidence of firearm usage was presented at trial or otherwise.

      . In his requested charges to the jury, the defendant expressly requested that they be made aware of the sentence enhancement provisions of art. 893.1. Further, the sentencing hearing reflects that defense counsel was aware before trial of the scope of art. 893.1.


author: YELVERTON, Judge.

text:
    Steve FOX and Scott Bailey, Plaintiffs-Appellants, v. DON SIEBARTH PONTIAC, INC., Defendant-Appellee.
    No. 83-899.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Writ Denied Dec. 7,1984.

      Adam L. Ortego, Jr., Sulphur, for plaintiffs-appellants.
    James L. Babin, Lake Charles, for defendant-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, Judges.
   YELVERTON, Judge.

Steve Fox and Scott Bailey, car salesmen, appeal a trial court’s rejection of their suit against their former employer, Don Siebarth Pontiac, Inc., for the commission on the sale of a vehicle. As co-plaintiffs, Fox and Bailey each demanded one-half of the commission on the sale of a 1982 Mercedes-Benz, claiming the sale was procured through their joint efforts, though not consummated until three months after Fox, allegedly the prime “procuring cause”, left defendant’s employ. The trial court found for defendant, concluding on the facts that plaintiffs had failed to prove they were entitled to a commission under the terms of their employment. Finding no manifest error in this factual determination, we affirm.

In the early part of 1981, while both Fox and Bailey were working for the defendant dealer, it was learned that Pat O’Carroll, a Lake Charles restaurateur, was interested in buying a Mercedes-Benz. It is disputed whether it was Fox or another salesman, Charles Shipp, who worked on the deal first, but there is no question that it was Fox, assisted by Bailey, with whom O’Carroll was dealing when an agreement was reached, the car ordered, and a $1,000 deposit obtained. A car meeting the buyer’s specifications was hard to find, and took time; the deposit, at O’Carroll’s request, was returned to him in about May. The customer still wanted the car, however, and defendant’s sales manager continued his efforts to locate one. On August 30 Fox was terminated for reasons unrelated to this deal. The car arrived in early December and, nearly three months after Fox left defendant’s employ, the sale was completed by the defendant’s sales manager. Later that month the other plaintiff, Bailey, resigned.

Plaintiffs, like all defendant’s salesmen, were paid on a commission basis. In the middle of each month they were paid a draw of $200. At the beginning of each month their paycheck consisted of the commissions earned on sales completed the month before. It was understood and undisputed that a commission was not payable until the sale was completed, and a completed sale, by everybody’s definition in the case, meant closing of the sale, payment of the price, and delivery of the car to the buyer.

The employment agreement was a verbal one. Both sides testified that the subject of payment of commissions on sales completed after termination of employment was never discussed. The issue, therefore, is whether plaintiffs proved facts supporting an inference that the employment contract for sale of cars provided for the vesting of commissions once a salesman became the “procuring cause” of a later completed sale, regardless of whether or not he participated in the closing of that sale.

In a suit to recover additional wages in excess of $500 under an oral contract of employment the basic rule governing proof is Civil Code art. 2277, which requires that plaintiff prove his case by one credible witness “and other corroborating circumstances.” Taunton v. Cane Air, Inc., 405 So.2d 624 (La.App. 3rd Cir.1981); Taylor v. Clark, 304 So.2d 728 (La.App. 4th Cir.1974). Whether the evidence offered by plaintiff corroborates his claim is a finding to be made by the trier of fact, and is not subject to reversal unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Taunton v. Cane Air, Inc., supra.

Although the trial judge did not give written reasons for judgment, it is clear from his comments made during and at the conclusion of the trial that he found plaintiffs failed to prove that they were entitled to a commission under the terms of their employment. It is evident that the trial court concluded that company policy and the understanding of the dealer’s employees was that a salesman did not earn a commission until he completed the sale by getting the purchase price and delivering the vehicle.

There is evidence in the record offered by defendant explaining its practice and policy for the payment of commissions, which fully supports the trial judge’s factual determination. There was testimony that a car salesman’s work is not ended by simply finding a person willing and able to purchase; he must complete the sale, sometimes help arrange financing, get paid, make delivery of the car to the customer, instruct the buyer in the vehicle’s operation, and answer questions and hear complaints after the sale is completed. The salesman’s commission is considered payment for these services as mucih or more than for the selling job that got the sale in the first place.

Fox testified his understanding was that a salesman earned the commission if he made a sale that was ultimately consummated by payment and delivery, regardless of whether he was in the employ of the dealer when the sale was completed or not. He said he understood he would be paid, that being only fair. The dealer, just as vociferously citing fairness, declared that the practice to which he adhered was well known among his employees because it was “common horse sense” and did not need discussion. This was the testimony of Jack Hebert, the sales manager. Carol Clarke, defendant’s finance and insurance manager for six years was, at the time of trial, employed by another dealer in Lake Charles. She testified that during the six years she worked for defendant, she was paid on a commission and salary basis, and that she was not paid for sales she began" working on but did not close before leaving and that, though this was not discussed, it was understood because that was “the way.” Her replacement, an employee who was also paid on a commission basis testified similarly that this was her understanding.

The trial judge indicated during the trial he was interested only in the policy of this employer, and would not admit evidence of custom in the automobile retail industry. Nevertheless, despite this injunction, some evidence crept in on both sides, enough to indicate that there are at least some dealers whose accepted arrangements with their salesmen require completion of the sale, defined as payment for and delivery of the vehicle, before the salesman has earned his commission. (For a case which discusses the reasons for this practice, see Division of Labor Standards Enforcement v. Dick Bullis, Inc., 72 Cal.App.3d Supp. 52, 140 Cal.Rptr. 267 (1977).) The evidence was rather clear that the policy of the dealer in the instant case was not to pay a commission to a salesman who left its employ before the sale was completed. Apparently, in the automobile sales industry, it is getting paid the price and delivering the car — the completion of the sale— that is regarded as the meaningful part of selling.

There was testimony that in some instances, if a salesman left during the consummation of a sale (for example, after payment of the price but before actual delivery), the company would pay him half the commission. In fact, that had occurred to the benefit of plaintiff Bailey after his departure. However, the testimony was uncontroverted that in every case where the completion of the deal was handled entirely by someone other than the initiating salesman, no portion of the commission was owed the initiating salesman by the dealer.

Apart from the trial judge’s factual finding that it was not in the employment agreement, “procuring cause”, in our opinion, does not operate as a legal principle compelling the vesting of an earned commission in the sale of a car. The term is established in the law of real estate brokerage contracts. Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La. 1977). We doubt, however, that it is appropriate for salesmanship of movables. We have found no case in this state upholding a commission for the sale of movables based solely on a finding that the salesman was the procuring cause. The closest case arguably supporting plaintiffs’ theory is Rubenstein Bros. v. LaForte, 320 So.2d 303 (La.App. 4th Cir.1975). There, a five judge court voting three to two said that while it did not agree with some of the findings of the trial judge, finding no manifest error it would affirm the holding that, in the absence of a policy to the contrary on the part of the employer, a salesman was entitled to the full commission on “special order” sales made before his resignation but not delivered to and accepted by the purchaser until after the salesman’s resignation. The significance of that case to ours is evidenced by the emphasized language, because in the instant case, the trial judge found that there was a policy of this employer, which was probably known by the plaintiffs, that a salesman leaving its employ before a sale was completed was not entitled to a commission.

In Broderick v. Taylor, 161 So. 630 (La. App. 2nd Cir.1935), it was held as a matter of law that an agreement for the sale of an item from a marble and granite works did not entitle the salesman, who left defendant before the stone was delivered and paid for, to a commission. A similar ruling in a case of the sale of a movable appears in Tricou v. Phillip H. Sizeler, Inc., 195 So. 361 (La.App.Orl.1940).

Although quantum meruit was not argued by plaintiffs, we have considered whether they might be entitled to recovery under that theory, and we conclude that they are not. In Perry v. Al George, Inc., 428 So.2d 1309 (La.App. 3rd Cir.1983), we affirmed a trial court’s award in quantum meruit made by a salesman claiming commissions after the termination of his employment, based on sales made before he was terminated. There are a number of significant differences between the facts of that case and the instant case, not the least among which is that there was no evidence in the Perry case of a policy or experience governing the payment of commissions after termination. Moreover, the difficulty of applying quantum meruit to commissions on automobile sales is readily apparent. The instant case is a good example: four people worked on this sale, beginning with Charles Shipp, who left defendant’s employ a month after Pox went to work, continuing with Fox, who enlisted the help of plaintiff Scott Bailey, and finally, ending up with Jack Hebert, the sales manager. Quantum meruit is not an appropriate standard to resolve such potential disputes, because there is a high rate of mobility with car salesmen, and conflicts will inevitably arise over the division of the commission when more than one person has worked on a deal, some being gone and some still with the agency by the time the sale is completed and the commission is ready to be paid. By contrast, in the Perry case, supra, once the sale was made the salesman’s entitlement to commissions was credited to him on the books. Thereafter, the salesman was paid proportionately as his employer was paid for the equipment sold. In the Perry case, the salesman continued to perform his duties even after termination, and the trial court’s award in quantum meruit was based upon what the salesman actually earned. To the contrary, it appears that in the automobile sales industry, it is not uncommon for entitlement to a commission to be considered earned only when the sale is completed.

We find no manifest error in the trial court’s judgment. We affirm, at appellants’ costs.

AFFIRMED.


author: FORET, Judge.

text:
    Clarence HEAD, Plaintiff-Appellee, v. ERATH GENERAL HOSPITAL, INC., et al., Defendant-Appellant.
    No. 83-909.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.
    Writ Denied Jan. 14, 1985.

      Watson, Blanche, Wilson & Posner, Todd A. Rossi, Baton Rouge, for defendant-appellant.
    Malcolm Brasseaux, Church Point, and Andrus, Preis & Kraft, Gregory E. Tonore, Lafayette, for plaintiff-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   FORET, Judge.

Plaintiff, Clarence Head, filed suit against defendant, Erath General Hospital, Inc. and its liability insurer, Allrisk Corporation of Louisiana, seeking to recover damages for personal injuries sustained on April 1, 1983, while plaintiff was a patient in Erath General Hospital. Defendant hospital filed a dilatory exception of prematurity and peremptory exceptions of no cause and no right of action. The trial court overruled defendant’s exceptions, and defendant appealed. The trial court stayed all proceedings pending defendant’s appeal.

Defendant’s appeal presents two issues for this Court’s determination:

(1) Whether the trial court’s overruling of defendant’s exceptions is appeala-ble and,
(2) Whether a slip and fall resulting in injuries to a patient comes within the purview of the medical malpractice act (LSA-R.S. 40:1299.41).

Plaintiff alleges that he was injured while a patient at Erath General Hospital. He claims that when he attempted to use the bathroom facilities in his hospital room, he slipped and fell on a fluid which workmen in an adjoining room were using to strip floors. Plaintiff filed suit against defendant hospital and its liability insurer, claiming that the hospital’s negligence was the cause of his accident and resulting injuries. The defendant hospital filed dilatory and peremptory exceptions asserting that plaintiff’s claim came under the medical malpractice act and that, as a result, plaintiff had to present his claim to a medical review board before filing suit. The trial court overruled defendant’s exceptions and granted a stay of proceedings pending defendant’s appeal.

The first issue we must decide is whether an appeal lies from the judgment complained of. Although plaintiff (appel-lee) does not raise this issue, a premature appeal will be dismissed by an appellate court ex proprio motu. Louisiana National Bank v. Hebert, 398 So.2d 632 (La.App. 4 Cir.1981); Dillon v. State, 322 So.2d 351 (La.App. 2 Cir.1975); Gay v. Gay, 193 So.2d 537 (La.App. 3 Cir.1967). The denial of dilatory and peremptory exceptions is an interlocutory judgment which cannot be appealed unless there is a showing of irrepa-rabie injury. Sylvester v. St. Landry Parish Police Jury, 401 So.2d 688 (La.App. 3 Cir.1981); First National Bank of Shreveport v. Crawford, 426 So.2d 1348 (La.App. 2 Cir.1983); LSA-C.C.P. Art. 2083. In Cashio v. Baton Rouge General Hospital, 378 So.2d 182 (La.App. 1 Cir.1979), the court found that the overruling of the hospital’s exception of prematurity resulted in irreparable injury and was appealable. In that case, as in the present one, the substance of the exception was that the suit was premature because plaintiffs had commenced their action without first presenting their complaint to a medical review board as required by LSA-R.S. 40:1299.41 et seq. The court concluded that to require defendant to forego the benefits of the medical review panel would visit irreparable injury on defendant. We concur in this conclusion and hold that, in the present case, the trial court’s overruling of defendant’s exceptions is appealable.

We next turn our attention to the propriety of the court’s decision to overrule defendant’s exceptions. The trial court apparently concluded that defendant’s accident and resulting injuries were not covered by the medical malpractice act. We agree.

As concerns the question of whether plaintiff’s complaint falls within the scope of the medical malpractice act, the sole point of dispute is whether plaintiff’s accident was a result of “malpractice” as defined by the medical malpractice act. Malpractice is defined under the act as:

“... any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, and also includes all legal responsibility of a health care provider arising from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.”

Under the statute, the tort must be based on health care or professional services. In the present case, the tort was not based on health care services or professional services that were rendered or should have been rendered to plaintiff. We are aware that the act broadly defines health care as:

“... any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement.”

Nevertheless, we think that the negligent actions of defendant which plaintiff alleges in his petition do not fall within this definition. None of the factual averments of plaintiff’s petition disclose any substantial relationship between plaintiff’s fall and any acts which defendant hospital should have performed on behalf of plaintiff as a patient in its facility. There is no allegation that plaintiff’s accident was caused by or is in any way related to his medical treatment.

An examination of the jurisprudence shows that our courts have found malpractice to include such things as: an unidentified employee tripping over an IV tube in the x-ray room; Wyble v. St. Luke General Hospital, 415 So.2d 622 (La.App. 3 Cir. 1982); failure to provide clean and sterile conditions resulting in a fatal staph infection, Cashio v. Baton Rouge General Hospital, supra; malfunction of a medical life support system, Renz v. Ochsner Foundation Hospital/Clinic, 420 So.2d 1008 (La. App. 5 Cir.1982). All of the examples noted above involve breaches of duty more directly associated with the provision of medical care than that with which the present case is concerned. In fact, in Cashio, the First Circuit used the example of a slip and fall case as a type of tort case that would not come within the purview of the medical malpractice act.

A fair reading of the medical malpractice act leads us to conclude that plaintiff's cause of action, as alleged, is not covered by it. Moreover, because the medical malpractice act constitutes a special legislative provision in derogation of the general rights available to tort victims, the act must be strictly construed. Williams v. St. Paul Insurance Companies, 419 So.2d 1302 (La.App. 4 Cir.1982), writ denied, 423 So.2d 1182 (La.1982). The trial court was correct in overruling defendant’s exceptions. >

DECREE

For the foregoing reasons, the decision of the trial court is affirmed.

Costs of this appeal are assessed against defendant-appellant.

AFFIRMED.