text:
    Robert J. FRANCIS, Plaintiff-Appellant, v. BOGALUSA IRON WORKS, INC. and Rockwood Insurance Co., Defendants-Appellees.
    No. 10445.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Orlando G. Bendana, New Orleans, for plaintiff-appellant.
    William J. Goliwas, New Orleans, for defendants-appellees.
    Before SARTAIN, ELLIS and PICKETT, JJ.
   SARTAIN, Judge.

This suit was instituted by plaintiff-appellant, Robert J. Francis, against defendants-appellees, Bogalusa Iron Works, Inc. and its insurer, Rockwood Insurance Co., on a claim for workman’s compensation benefits allegedly due plaintiff as a result of total and permanent disability sustained by him in the course of his employment. The trial judge in his written reasons ruled in favor of defendants dismissing plaintiff’s claim. We affirm.

The record shows that in November of 1972 while attempting to load a manhole cover onto a truck for his employer, Boga-lusa Iron Works, Inc., plaintiff heard a popping noise in his back and began to experience pain shortly thereafter. He consulted his physician, Dr. John Pepe, who diagnosed the injury as a lumbosacral sprain. After comprehensive treatment, Dr. Pepe released plaintiff as able to return to work on January 7, 1973. Plaintiff, however, still complaining of pain in his back and neck, did not return, and as far as the record shows, has never returned to any kind of work.

Defendant insurer submitted a check to plaintiff and his attorney in the amount pf $231,00 but has denied liability for further compensation benefit payments.

The trial judge noted the medical testimony and concluded that the disability plaintiff complains of herein was not related to the accident and dismissed plaintiff’s claim, thus prompting this appeal.

The record before us contains the depositions of four different doctors, all of whom examined plaintiff at various times following his injury.

Dr. John L. Pepe, plaintiffs treating physician, stated he examined plaintiff on the day of the accident, November 28, 1972. The past history of the patient showed that he had broken his left thigh at age eight while attending school. His right hip was fractured at age fourteen, and he again fractured this hip at age eighteen when involved in a truck accident. At that time a plate had to be inserted into the hip.

Following the general examination and subsequent x-rays, Dr. Pepe diagnosed the injury as a lumbosacral sprain. He further noted a pelvic tilt and that the patient’s legs were crooked. When asked about a possible herniated disc, the doctor stated a myelogram would be necessary for such a determination, and none was conducted. He testified further that he saw the patient almost daily up until the time of his discharge, at which time the patient seemed to be making satisfactory progress. He indicated in his report to defendant insurance company that the patient suffered no permanent disability from the incident in question and could return to the same type of work as done before the injury. At the time of the deposition Dr. Pepe stated he had not seen plaintiff since the date of discharge and was thus unaware of his present physical condition.

The deposition of Dr. Michael E. Carey, a specialist in neurology, shows that he examined plaintiff at plaintiff’s counsel’s request on February 23, 1973. As a result of the past history and the physical examination conducted by him, Dr. Carey concluded the patient probably had a cervical osteoarthritic condition with some nerve root impingement which caused pain in the upper extremity.

He further felt there may have been a lumbar disc due to the complaints of back pain radiating down the leg, although neurological findings were negative in this respect. He felt that plaintiff should have a myelogram, that he was disabled at the time and unable to return to work, and that the disability stemmed from the accident. He took no x-rays at the time but advised plaintiff to enter the hospital for further evaluation where x-rays would be taken.

Dr. Louis F. Matta, an orthopedic surgeon, examined plaintiff on March 22, 1973. He had treated the patient on a prior occasion in February of 1969 for injury to his head and neck." The physical examination revealed “pronounced bowing” of the lower extremities, bilateral paraspi-nous musculature spasm involving the low back region, tenderness over the lumbo-sacral interspace and iliolumbar regions, back restricted to fifty percent of its normal motion, and varicosites in the right leg. X-rays of the lumbosacral spine showed osteoarthritic changes throughout the lumbar spine, mainly consisting of “anterior and anterior lateral spur formation involving the vertebral bodies.”

From the above observations Dr. Matta concluded that “this patient had a symptomatic acute lumbosacral sprain superimposed over arthritic changes of the lumbar spine and that the symptoms would probably become chronic.” He stated that by “chronic” he meant that plaintiff would continue to suffer low back pain. He was of the opinion that the pain would be due to the osteoarthritis of the lumbosacral spine, and that the sprain itself would heal. Examination was made for ruptured disc and none was found.

Dr. Matta concluded that the patient was totally and permanently disabled. He agreed that the accident brought about low back pain, but felt it did not aggravate the arthritic changes. He stated that the patient’s condition would, however, prolong the recovery from the lumbosacral sprain. He felt the lumbosacral sprain should resolve itself anywhere from six weeks to five to six months. He further stated that the physical condition of the patient was such that even had there been no back injury, he would render the plaintiff totally and permanently disabled on the basis of his extremities alone.

Dr. Irving Redler, another orthopedic surgeon, examined plaintiff on April 30, 1973. Following a physical examination and x-rays, Dr. Redler concluded that plaintiff suffered from acute back strain. It was his opinion that plaintiff’s complaints of neck pain were not associated with his accident, and that plaintiff’s back pains were due to his pelvis tilt. He stated further that he felt plaintiff could return to work.

It is well settled that the burden of proof rests with the plaintiff in a compensation suit as in any other, and that it is essential that plaintiff prove his case by a preponderance of the evidence. Bailey v. St. Paul Fire & Marine Insurance Co., 268 So.2d 697 (La.App. 1st Cir., 1972), writs refused, 270 So.2d 873, La.

In the present case we are faced with conflicting medical testimony. The treating physician, Dr. Pepe, stated that he felt plaintiff was sufficiently recovered as of January 7, 1973 to return to his former employment. The three specialists who were consulted all expressed differing views. Dr. Carey stated plaintiff was disabled and that this disability could be attributed to plaintiff’s accident. Dr. Matta also felt plaintiff was disabled. However, his finding of disability was based upon conditions suffered by plaintiff prior to his accident. Dr. Redler felt plaintiff had recovered from any disability and could return to work.

On the basis of this testimony, we cannot say that the trial judge committed manifest error in concluding that plaintiff had failed to show by a preponderance of the medical evidence that he was totally and permanently disabled. See Taylor v. Sam Grimmett, Inc., 99 So.2d 365 (La.App. 1st Cir., 1957); Hooper v. Hartford Accident and Indemnity Co., 80 So.2d 891 (La.App. 1st Cir., 1955).

Accordingly, the judgment of the trial court is affirmed with plaintiff cast for all costs of these proceedings.

Affirmed.


source: Caselaw Access Project

author: COVINGTON, Judge:

license: Public Domain

text:
    David J. KEYSER, Jr. v. Jessie M. TRIPLETT, Jr., and Cumis Insurance Society, Inc.
    No. 10407.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 16, 1976.

      Gary L. Keyser, Baton Rouge, for appellant.
    Frank M. Coates, Jr., Baton Rouge, for Triplett & Cumis Ins.
    Donald M. Garrett, Alexandria, for in-tervenor Houston Gen. Ins. Co.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

The plaintiff-appellant, David J. Keyser, Jr., sued for personal injuries sustained by him in an accident at the intersection of Highway 19 and Lavey Lane in the Parish of East Baton Rouge. The defendants are Jessie M. Triplett and Cumis Insurance Society, Inc.; Houston General Insurance Company filed a petition of intervention as the workmen’s compensation insurer of plaintiff’s employer, seeking to recover the amounts paid under the workmen’s compensation policy. The trial court rendered judgment in favor of the defendants and against the plaintiff and dismissed the intervention of Houston General Insurance Company. We affirm.

A state motorcycle policeman, on an alleged emergency call on November 8, 1972, at approximately 12:15 P.M., was involved in this collision with a 1971 Chevrolet pickup truck owned and operated by Triplett. Plaintiff had been assigned to provide a motorcycle escort for an oversized house which was being moved and was operating a red and white 1968 Harley-Davidson motorcycle, bearing the insignia of the Louisiana State Police Department, equipped with two red flashing lights and a mechanical siren.

At about 12 o’clock noon he received radio instructions to proceed immediately to headquarters on Airline Highway; shortly thereafter, said orders were changed and he was directed to proceed immediately to Ryan Airport, there to join his tactical unit in order to quell a disturbance at Southern University.

The call received was classified as a “Code 10-18”, which means top priority emergency, authorizing travel with red flashing lights and siren. Pursuant to those instructions the policeman proceeded in a southerly direction pn Highway 19 at an alleged speed of 45 to 50 miles per hour, allegedly displaying his emergency flashing lights and using his siren as he approached the intersection in Baker, Louisiana, where the accident occurred. Highway 19 is a four-lane, north-south traffic artery, connecting Baton Rouge, Baker and Zackary; Lavey Lane is a two-lane, east-west thoroughfare, which continues on west of the intersection as Magnolia Drive. The two north-bound lanes of Highway 19 are separated from the south-bound lanes by double yellow caution lines. The movement of traffic through the intersection is controlled by two electric semaphores. The weather was clear and the pavement was dry.

The policeman was going southerly in the right, or outside, lane of Highway 19 and testified that he had engaged his lights and siren approximately one and one-half blocks north of the pertinent intersection and began to gradually reduce speed.

At the same moment, Triplett was operating his truck in a westerly direction on Lavey Lane; the semaphore signal was green to Triplett and red to the policeman. As the two vehicles attempted to negotiate the intersection simultaneously, the plaintiff’s motorcycle collided or hit the passenger door of the defendant’s pickup in the far outside south-bound lane of Highway 19. The policeman sustained various injuries, the most severe of which was a com-minuted and displaced fracture of the left ankle involving the tibia and fibula, which required open reduction by Dr. A. C. Far-ries, Jr., an orthopedic surgeon, who testified by deposition.

The evidence clearly established that the plaintiff crossed the intersection against a red or “stop signal”.

Plaintiff, at the trial, contended that the defendant, Triplett, was solely responsible for the accident in failing to yield the right of way to a police vehicle lawfully traversing an intersection in accordance with statutory law. Alternatively, he argued that the said defendant had the last clear chance to avoid the accident. The defense was that the plaintiff was solely responsible for the accident in attempting to negotiate the intersection against the unfavorable signal while travelling at an excessive rate of speed and in failing to give sufficient audible or visible warning of his approach. Defendants, in the alternative, plead the plaintiff’s contributory negligence.

After the trial and judgment, the plaintiff moved for a new trial and later amended and supplemented said motion, stating in essence that the judgment was contrary to the law and the evidence and that evidence important to his cause has been discovered which, with due diligence, could not have been obtained before or during the trial. The motion for new trial was denied by the trial judge. On this appeal, appellant lists several specifications of error, to-wit:

1. The trial court erred in failing to apply the statutory law of Louisiana applicable to authorized emergency vehicles proceeding under emergency conditions, and, in so doing, failed to find the defendant, Jessie M. Trip-lett, negligent in failing to yield to the flashing red lights and siren and to yield to an emergency vehicle.
2. The trial court erred in failing to recognize overwhelming and unrebutted evidence of negligence on the part of the defendant, Jessie M. Triplett, in failing to react to what he saw or reasonably should have seen in the exercise of due diligence, which negligence proximately resulted in the accident forming the basis of this suit.
3. The trial court erred in finding the plaintiff, David J. Keyser, Jr., negligent in negotiating the intersection under the circumstances established by the evidence.
4. The trial court erred in finding the plaintiff, David J. Keyser, Jr., con-tributorily negligent and in failing to apply the doctrine of last clear chance, despite overwhelming evidence that the accident would have been avoided had the defendant, Jessie M. Triplett, merely slowed at the intersection instead of accelerating.
5. The trial court erred in failing to find that a law enforcement officer is entitled to the protection afforded any other citizen under the doctrine of last clear chance.
6. The trial court erred in failing to grant a new trial for the purpose of adducing further testimony and evidence regarding the nature and circumstances of the cases and applicability of the doctrine of negligence, contributory negligence and last clear chance thereto.
7. The trial court erred in failing to grant a new trial for the purpose of adducing further testimony and evidence regarding the effectiveness of the mechanical siren on the emergency vehicle and its usage in the industry and the law enforcement community, which custom, usage and standard was invalidated by the court without notice or opportunity for the parties to litigate.

As a general rule, a driver approaching an intersection with the green light in his favor is not obliged to turn his head in the direction of traffic approaching from his left or right; Moore v. Traders & General Insurance Co., 227 So.2d 174 (La.App., 2nd Cir. 1969), writ refused, 254 La. 1103, 229 So.2d 114; Youngblood v. Robison, 239 La. 338, 118 So.2d 431. See also Hartford Accident & Indemnity Company v. Finley, 282 So.2d 830 (La. App., 1st Cir. 1973) to the same effect, and further that:

“. . . a motorist crossing an intersection with the green light [in his favor] . . . becomes obligated to observe traffic moving in the same or opposing direction.”

Of course, there are special statutes and cases relative to emergency vehicles.

For the purpose of resolving the legal issues involved, we have combined the first five specifications of error and the remaining two specifications. The issues are whether the trial court committed manifest error in concluding that Sergeant Keyser breached the duty owed his fellow motorist, mandated by LSA-R.S. 32:24 and LSA-R.S. 32:125, when he entered the intersection without sufficiently slowing down or stopping as necessity compelled for the safe operation of his vehicle, and whether the trial court committed error in denying him a new trial.

The statutory provisions pertinent to the decision herein are as follows:

“LSA-R.S. 32:24 Emergency vehicles; exceptions
A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in pursuit of an actual or suspected violator of the law, or when responding to, but not returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may;
* 5ft * * %
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
ifc % %
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible and visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”
“LSA-R.S. 32:125 Procedure on approach of authorized emergency vehicle
A. Upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals, or of a police vehicle properly and lawfully making use of an audible signal only, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right hand edge or curb of the highway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.
B. This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.”

Sergeant Keyser was operating an authorized emergency vehicle in response to an emergency call. Undoubtedly, he qualified under Paragraph A of R.S. 32:24 and “may exercise the privileges set forth in this Section”. However, these privileges are subject to the conditions found in Paragraphs C and D.

Drivers of emergency vehicles must “drive with due regard for the safety of all persons”. Section B(2) states that the driver of an authorized emergency vehicle may proceed past a red signal “but only after slowing down or stopping as may be necessary for safe operation.” Powell v. Allstate Insurance Company, 233 So.2d 38 (La.App., 2nd Cir. 1970).

Appellant contended at the trial, and now on appeal, that his siren was operational and emitted a loud and audible signal; moreover, he also contended that his red flashing lights were turned on and in proper working condition. We have examined the testimony of the plaintiff’s witnesses and find no error in the trial court’s conclusion. Billy Wayne Tatum and William R. Flory were playing golf and heard the impact but neither heard an audible signal from the plaintiff’s siren sufficient to warn motorists prior to the collision. Grady K. Hungate was the only eye-witness to the accident, as he was travelling on Highway 19 in a northerly direction and slowing his vehicle because of the red traffic signal facing him. He testified that he was about 50 to 100 feet from the intersection when the accident occurred and although he heard the siren “winding down” after the accident, he did not hear the siren prior to the accident, nor did he see the flashing red lights which appellant contends were in operation.

The trial court therefore held that:

“The Court, after reviewing the testimony, is convinced that the mechanical siren was operating subsequent to impact. Assuming arguendo that the siren was operating prior to the accident, this Court has no alternative but to hold that same did not emit an audible signal sufficient to warn a reasonably alert motorist of the approach of an emergency vehicle.”

We held, in Cotten v. Transamerica Insurance Company, 211 So.2d 110, at page 116 (La.App., 1st Cir. 1968):

“What constitutes compliance with the statutory requirement that the signal be ‘sufficient to warn motorist’ is, of course, a factual issue to be determined in the light of the circumstances of each particular case. It is obvious, however, that the sound must be of such a nature as clearly characterize [d] it as a warning device and of such volume and intensity as to be heard by a motorist possessed of average hearing.”

The trial judge, in his Written Reasons for Judgment, did not refer to the matter of appellant’s plea of the last clear chance doctrine; however, appellant has urged that plea from the beginning of this cause and throughout this appeal. We find that the doctrine is not applicable under the facts of this case because appellant testified that when he first saw Triplett’s truck he only lightly applied his brakes and then, realizing that Triplett was not going to stop, “I slammed on my brakes and cut to the right”, Tr. 89.

Again, relative to Triplett’s situation, our Supreme Court held in Carter v. New Orleans Public Service, Inc., 305 So.2d 481 (La.1974), quoting from one of its prior cases:

“ ‘. . . the rule is established in this State that a motorist travelling on a favored street, and, a fortiori, on a street controlled by electric semaphore lights, is entitled to assume that . . . traffic facing a red light, will . . . respect his right-of-way. Indeed, it is now well settled that it is only in exceptional circumstances [as], where the motorist on the favored street could have avoided the accident by the exercise of the slightest sort of observation and care, that he will be found derelict.’ ” (emphasis added).

Also, see Powell v. Allstate Insurance Company, supra.

Appellant urges in his brief that the trial court erroneously based his decision, at least in part, on his finding that the mechanical siren on the motorcycle operated by the appellant did not emit an audible signal sufficient to warn a reasonably alert motorist of the approach of an emergency vehicle. In view of the testimony of the plaintiff’s own witnesses, Messrs. Tatum and Flory, and Hungate, whom he called on direct examination, we cannot say that the trial judge committed manifest error.

As set forth in the case of Canter v. Koehring, 283 So.2d 716 at page 724 (La.1973):

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.”

Our holding in Reech v. Bodin, 286 So.2d 477 (La.App., 1st Cir. 1973) is in accord therewith.

Accordingly, we affirm the holding of the trial court; all costs are assessed against plaintiff-appellant.

Affirmed.


author: JULIAN E. BAILES, Judge Pro Tem.

text:
    Irving ARMSTEAD, Sr., Individually, and as Administrator of the Estate of his minor children, Cheryl D. Armstead, et al. v. The AETNA CASUALTY & SURETY CO.
    No. 10388.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 18, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Dec. 19, 1975.

      Patrick W. Pendley, Plaquemine, for appellants.
    John I. Moore and Frederick R. Tulley, Baton Rouge, for appellee.
    Before LANDRY and BLANCHE, JJ., and BAILES, J. Pro Tern.
   JULIAN E. BAILES, Judge Pro Tem.

This is an appeal by the plaintiffs herein, Irving Armstead, Sr., from a summary judgment granted in favor of defendant, Aetna Casualty and Surety Company (Aet-na).

On November 29, 1973, the plaintiff’s wife and children were involved in an accident while riding in plaintiff’s automobile. Armstead, acting in his own behalf and as administrator of the estate of his minor children, subsequently filed suit against Aetna for the recovery of his medical expenses and for the personal injuries sustained by those children, alleging that the automobile driven by petitioner’s wife was insured by Aetna at the time of the collision.

The defendant’s motion for summary judgment was based upon its contention that on November 2, 1973, some twenty seven days prior to the accident, Arm-stead’s policy had been cancelled because of non-payment of the premium.

The undisputed facts and chronology of events associated with the cancellation are found in the affidavit of Walter H. Travis, president of the Travis-Bergeron Insurance Agency, Inc., from whom Armstead purchased the policy. The appellant has basically adopted those facts as being true. They are that on March 10, 1973, a one-year policy with Aetna was written through the Travis Agency for Armstead covering the automobile in question for a total premium of $236.00. Armstead paid $137.40 down and the balance of $98.60 was financed through Louisiana National Bank of Baton Rouge, Louisiana.

To borrow that balance from the bank, Armstead and Travis entered into a Premium Finance Agreement with the lender, providing that the balance was to be paid in six monthly installments of $17.62 each, the first to be paid on April 15, 1973, and on the 15th day of each succeeding month thereafter. The Premium Finance Agreement also contained this clause.

“Agent and insured further authorized the Louisiana National Bank of Baton Rouge to cancel any and/or all of said policies at any time that the insured is delinquent in meeting his payments hereunder by more than five (5) days and authorize any insurer on receipt of any notice of cancellation of said policies to remit to Louisiana National Bank of Baton Rouge out of any and all return premiums from said insurance policies the balance of the insured’s then outstanding indebtedness hereunder to the Louisiana National Bank of Baton Rouge.”

Armstead, by his own admission, was late with some of those payments and, when the sixth and final payment which was due on September 15, 1973, was more than five days delinquent, the bank called upon the Travis Agency to pay that installment, which it did. The note was then assigned to the agency by the bank.

The agency mailed to Armstead a notice of cancellation of the policy on October 23, 1973, which would be effective November 2, 1973, unless payment was made by him prior to that time. The plaintiff does not dispute the receipt of that notice or the fact that no payment was made by him thereafter. On November 5, 1973, Arm-stead cashed a check in the amount of $68.31, which had been forwarded to him by the Travis Agency. This check represented a return of the unearned premium on the policy. Twenty-seven days later, the unfortunate accident giving rise to this litigation occurred.

Based upon these facts, the trial judge determined that the motion for summary judgment should be sustained. The appellant seeks reversal of that judgment on the grounds that Aetna could not validly cancel a policy for which they had been paid in full and further, that under the provisions of LSA-R.S. 22:636.1, subd. A(6), a third party could not validly cancel a policy of insurance. We find that the judgment of the district court is correct, and accordingly, it is affirmed.

The issues before the court for decision are whether an insured may assign the right to cancel his insurance policy to a third party upon certain terms and conditions and whether the exercise of that right by a third party is violative of public policy or the law of this State. We find no Louisiana decision dealing with these questions. Further, the issue appears to be res nova.

LSA-R.S. 22:637 provides in part as follows:

“A. Cancellation by the insured of any policy which by its terms is cancellable at the insured’s option or of any binder based on such policy may be effected by written notice thereof to the insurer and surrender of the policy or binder for cancellation prior to or on the effective date of such cancellation. In event the policy or binder has been lost or destroyed and cannot be so surrendered, the insurer may in lieu of such surrender accept and in good faith rely upon the insured’s written statement setting forth the fact of such loss or destruction.
“B. Following such cancellation the insurer shall pay to the insured or to the person entitled thereto as shown by the insurer’s records, any unearned portion of any premium paid on the policy as computed on the customary short rate or as otherwise specified in the policy. If no premium has been paid on the policy, the insured shall be liable to the insurer for premium for the period during which the policy was in force. * * *.”

Clearly, this statute contemplates the cancellation by an insured of his own policy prior to expiration of its term. Whether the insurer is paid in full is immaterial. We conclude that this right may be assigned by the insured to a third party and we perceive of no reason why such an assignment would be against public policy. See: Saskatchewan Gov’t Ins. Office v. Padgett, 245 F.2d 48 (5th Cir. 1957). See also 115 A.L.R. 1212, 1213, and authorities cited therein.

In the instant case the insured contractually authorized cancellation by Louisiana National Bank of this policy in the event of non-payment of the premium and, upon being paid by the agency after demand, the bank assigned that right of cancellation to the agent, who was legally and conventionally subrogated thereto, (c. f., Nagem Electric Co. v. Aetna Ins. Co., 195 So. 76, (La.App. 1st Cir. 1940). The insured was properly notified of the impending cancellation and candidly testified on deposition that, at that time, he had no money with which to pay the last installment. He thereafter cashed the unearned premium check.

LSA-R.S. 22:636.1, subd. A(6) and subd. B(l) contain these terms:

“A. As used in this chapter :
(6) ‘Nonpayment of premium’ means failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums on a policy, or any installment of such premium, whether the premium is payable directly to the insurer or its agent or indirectly under any premium finance plan or extension of credit. (Emphasis added)
“B. A notice of cancellation of a policy shall be effective only if it is based on one or more of the following reasons:
(1) Nonpayment of premium; . . . ”

Thus, policy cancellations for non-payment of premium “under any premium finance plan or extension of credit” are sanctioned by the laws of this state and are obviously not contrary to public policy. The policy purchased by Armstead was properly cancelled because of the insured’s failure to pay the premium according to the terms of the agreement. Therefore, there being no genuine issue of material fact to be resolved and the defendant being entitled to judgment as a matter of law, the motion for summary judgment was properly granted. LSA-C.C.P. Article 966.

For the foregoing reasons, the judgment appealed is affirmed, at appellant’s cost.

Affirmed.


author: LANDRY, Judge.

text:
    Francis MARCEL and wife, Bernice Marcel v. HOSPITAL CORP. OF the SISTERS OF SAINT JOSEPH and Argonaut Insurance Co.
    No. 10397.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 25, 1975.
    Rehearing Denied Nov. 24, 1975.

      Cleveland J. Marcel, Jr., Houma, for appellants.
    Anthony D. Ragusa, Jr., Houma, for ap-pellees.
    Before LANDRY, BLANCHE and BAILES, JJ.
   LANDRY, Judge.

This appeal by plaintiffs, Francis and Bernice Marcel (Appellants) is from judgment dismissing their action for personal injuries allegedly sustained by Mrs. Marcel when she was dropped while being lifted from her bed in Terrebonne General Hospital (Hospital). Plaintiffs’ action was brought more than one year following the accident. The trial court sustained a plea of one year’s prescription filed on behalf of Hospital and its insurer, Argonaut Insurance Company. We affirm.

The facts are undisputed. On October 15, 1970, Mrs. Marcel was a patient in Ter-rebonne General Hospital. On said date, while being lifted from her bed by means of a bed sheet, the sheet split and Mrs. Marcel was dropped on the bed railing. Upon falling, her back struck the metal side of her bed. Her physician, Dr. Ma-thieu, was advised immediately of the incident. Several days thereafter X-rays were taken by Dr. Mathieu, who advised Mrs. Marcel that she was suffering from arthritis. The day following X-ray, Mrs. Marcel was discharged from the hospital.

Mrs. Marcel continued to experience pain upon leaving the hospital. Approximately one month following her discharge, she was readmitted to the hospital where she was treated by Doctors Cinnater, Mack Thomas and Philip Cenac, and also by Ken Barrilleaux, a physical therapist, for a period of one week and then discharged. Thereafter she was administered weekly treatments for arthritis.

In October, 1971, Mrs. Marcel was again hospitalized and seen by Dr. Richard Landry, who took X-rays and discovered that Mrs. Marcel had fractures of her lower spine. On June 27, 1972, plaintiffs instituted this present action.

Appellants concede that their claim is governed by the one year prescriptive period provided by LSA-C.C. arts. 3536 and 3537, and the jurisprudence interpretative thereof. See Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285. Appellants also acknowledge that since their claim is prescribed on the face of their pleading, Appellants bear the burden of showing interruption of the one year applicable period. Hunter v. Sisters of Charity of Incarnate Word, 236 So.2d 565, (La.App.), and authorities ^"in cited.

It is settled law that the one year prescriptive period applicable to an action in tort does not commence to run until the injured party becomes aware, as would a reasonable person under similar circumstances, of both the tort and resulting injury. Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285; Perrin v. Rodriguez, 153 So. 555 (La.App.); Hunter, above.

The applicable rule was stated by the Supreme Court in Cartwright, above, as follows:

“While this court has accepted in certain limited situations the common law doctrine ‘contra non valentem agere nul-la currit praescriptio/ which means that prescription does not run against a person who could not bring his suit, we do not think that plaintiff can find any comfort under the facts of this case in that doctrine. The rule that prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, applies only when such ignorance is not wilful and does not result from negligence, and the doctrine has been limited to cases where the debt- or has concealed the fact of the obligation or has committed other acts which tend to hinder, impede or prevent the creditor from ascertaining knowledge of the existence of the debt. See, Ayres v. New York Life Ins. Co., supra [219 La. 945, 54 So.2d 409].
Also, it is not necessary that the party have actual knowledge of the conditions as long as there is ‘constructive notice.’ Whatever is notice enough to excite attention and put the owner on his guard and call for inquiry is tantamount to knowledge or notice of every thing to which inquiry may lead and such information or knowledge as ought to reasonably put the owner on inquiry is sufficient to start the running of prescription.”

Appellants concede their awareness of Mrs. Marcel’s continued back pain following the accident. They point out, however, that they were led, from the outset, to believe the pain resulted from arthritis and not from injuries sustained when Mrs. Marcel was dropped in her bed. Appellants also contend they did not learn of the injury until October, 1971, when Dr. Landry advised that Mrs. Marcel had fractures of the lower spine. They urge that prescription did not commence in this instance until they were advised of the injury.

Mr. Marcel was present in his wife’s hospital room when the incident occurred. Appellants were aware that Mrs. Marcel experienced back pain immediately following the accident. In essence, Appellants contend her attending physicians incorrectly diagnosed her condition as arthritis, and that she had no means of learning the true cause of her pain as she relied upon their expert opinions.

Nevertheless, the testimony of both Appellants, taken by deposition, clearly shows that both suspected Mrs. Marcel’s continued pain resulted from causes other than arthritis. Additionally, Mrs. Marcel’s deposition reveals that she was aware she had hurt her back immediately after the accident.

There is no contention here that Hospital concealed facts or circumstances from Appellants or in any manner impeded or prevented Appellants from ascertaining knowledge of Mrs. Marcel’s back injury.

We agree that the circumstances obtaining herein are such to have put á reasonably prudent individual on notice and to require further prompt inquiry. Consequently, Appellants must be deemed to have had notice and knowledge of all matters which diligent inquiry may have revealed. Although Appellants may not have known the true and full extent of the effects of the accident, Mrs. Marcel’s condition following the incident was as to reasonably put Appellants on notice and commence the running of prescription.

The judgment of the trial court is affirmed; all costs of these proceedings to be paid by Appellants.

Affirmed.


author: SARTAIN, Judge.

text:
    Kenneth W. CARTER et al., Plaintiffs-Appellees, v. Edward FENCH, Defendant-Appellant.
    No. 10431.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 14, 1976.

      Fred G. Benton, Jr., Baton Rouge, for defendant-appellant.
    Charles L. Patin, Jr., Baton Rouge, for plaintiffs-appellees.
    Before SARTAIN, ELLIS and PICKETT, JJ.
   SARTAIN, Judge.

This litigation concerns the applicability of the Public Records Law (R.S. 44:1 et seq.). Plaintiffs, Frank S. Washington and Kenneth W. Carter, are the Editor-in-Chief and Managing Editor, respectively, of the Southern Digest, a student newspaper at Southern University and Agricultural and Mechanical College (University) in Baton Rouge. They instituted a summary proceeding (R.S. 44:35) against defendant, Edward Fench, President of the Student Government Association (SGA) to obtain copies of this organization’s budget for the fall semester of 1974 and the spring semester of 1975.

At the conclusion of a hearing on the rule,, the trial judge, for oral reasons assigned, made the same absolute and held that the financial records of the SGA fall within the scope of R.S. 44:1 and defendant, as its President, was required to furnish the requested materials.

Before the judgment on the rule was signed defendant filed an answer and re-conventional demand.

The reconventional demand averred that plaintiffs had used the medium of their publication to publicly imply that defendant had “something to hide” and had harassed, humiliated and embarrassed him.

The trial judge, in response to subsequent motions and exceptions, held that the answer to the rule was untimely (C.C.P. Art. 3783) and that the reconventional demand raised issues not incidental to the main demand (C.C.P. Art. 1061) and dismissed the same.

Defendant sought and was granted a de-volutive appeal as to each of the rulings noted above. Plaintiffs have answered seeking damages for frivolous appeal. We concur in that portion of the judgment appealed which held that the financial records of the SGA are public records and the the President of the SGA is subject to the Public Records Act. However, we are compelled to hold that plaintiffs can not avail themselves of the rights accorded to them under the Public Records Law because they have not complied with the essential provisions thereof which entitle them to the exercise of such rights. Further, we deny plaintiffs’ claims for damages for frivolous appeal.

The SGA is a student organization whose officers are elected by the student body. Officers besides the President are Vice-President, Business Manager, and Assistant Business Manager. The affairs of the SGA are conducted by these officers pursuant to resolutions adopted by the Student Senate. The latter is composed of representatives of various student organizations. The SGA officer directly responsible for the records is the Business Manager.

A portion of each student’s registration fee is allotted to the SGA but these sums are retained by the University. The Student Senate adopts a budget based on the funds derived from the registration fees. When a particular disbursement is desired the Senate passes an appropriate resolution. This resolution is, in essence, a request for payment and is forwarded to the Director of Student Affairs, an administrative officer of the University. A check is then issued by the University in the amount requested and is made payable to a designated payee.

Copies of the SGA budget are filed with the President of the University, the Comptroller, Vice-President, Vice-President for Student Affairs, and Director of Student Activities.

The record clearly discloses that plaintiff, Kenneth W. Carter, requested that defendant give him a copy of the two budgets. The time, place and manner in which these requests were made, however, is not disclosed.

Defendant contends that the official custodian of these records is the Business Manager of the SGA, and that he was the proper party to" whom plaintiffs’ request should have been directed. In addition, defendant argues that these documents were on file with and could have been readily obtained from the university officials noted above.

R.S. 44:1 provides, inter alia, that “all records . . . relating to the receipt or payment of any money received or paid by or under the authority of the Constitution or the laws of this state are public records . . . ” The legally constituted governing authority of Southern University is its Board of Supervisors which is created and empowered pursuant to Article 8, Sec. 7 of the Louisiana Constitution of 1974. The tuition fees are imposed on the students by that Board and must be paid to gain admission. Thus when these fees are paid to the University they become public funds and those agencies which are the ultimate recipients of such funds, whether they be governmental, public or private bodies, are subject to the Public Records Law insofar as their financial records are concerned. The trial juge was correct when he held that this included the SGA, albeit a student organization.

We find no merit to defendant’s argument that since actual custody of the records sought was in the office of the Business Manager of the SGA, defendant himself has no responsibility under the Act. We view the SGA as a single organization, and the president of that organization obviously has the authority to permit inspection of all public records lodged therewith.

However, since we have held the Public Records Law applicable to the particular facts here presented, we must take cognizance of all its provisions. L.R.S. 44:32 clearly provides that the right granted under the act is one of examination of public records, and further, the examination must be made during the regular office hours or working hours of the person to whom application is made. The record before us is barren of any supporting evidence which would establish that plaintiffs herein made any attempt to comply with this portion of the act. Rather, the brief testimony leaves us with the impression that requests were made not for examination, but for personal copies of the records in question. Further, there is no evidence that these plaintiffs ever presented themselves in the office of the SGA to make their request. The Assistant Business Manager, one of the officers with actual physical custody of the records in the SGA’s organization, testified that no requests of him were made by the plaintiffs concerning the budget records.

We feel that strict adherence to the Act in this respect is necessary in order to protect those in whose charge public records have been placed from being unduly harassed by those who seek to take advantage of the custodian’s legal obligations. The Act is specific on this point: “ . . . nothwithstanding the requirements contained hereinabove, examination of records under the authority of this section must be conducted during regular office or working hours.” (Emphasis ours) L.R.S. 44:32.

Accordingly, we find no proven violation of the Public Records Law by defendant herein since plaintiffs have not demonstrated their own compliance with the same.

We now turn to plaintiffs’ contention that they are entitled to damages for frivolous appeal. Such damages are provided for under C.C.P. Art. 2164 and are discretionary with the court. Notwithstanding the fact that defendant did appeal those decisions of the trial judge striking his answer and dismissing his reconven-tional demand, defendant did not pursue these matters on appeal. Inasmuch as we find in favor of the defendant on the principal issue appealed, we do not feel that under these circumstances plaintiffs are entitled to damages.

Accordingly, for the above and foregoing reasons, the judgment of the district court insofar as the same held that the financial records of the Student Government Association of Southern University Agricultural & Mechanical College, Baton Rouge, are public records is affirmed; however, that portion of the judgment holding the defendant, Edward Fench, in violation of the Public Records Law (R.S. 44:1 et seq.) is reversed and set aside and judgment is rendered herein recalling and vacating the rule nisi previously issued.

All costs of these proceedings relating to the rule and this appeal are assessed against plaintiffs. All such costs as pertain to defendant’s answer to the rule and reconventional demand are assessed against the defendant. The cost of this appeal is assessed against plaintiffs-appellees.

Affirmed in part, reversed in part and rendered.


author: BLANCHE, Judge.

text:
    Walter SHELTON and Rosa Lee Shelton v. AETNA CASUALTY AND SURETY CO.
    No. 10401.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 18, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Granted Jan. 28, 1976.

      Walton J. Barnes, Baton Rouge, for appellant.
    Wm. A. Norfolk, Baton Rouge, for ap-pellee.
    Before LANDRY, BLANCHE and BAILES, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, Rosa Lee Shelton, appeals a judgment of the Nineteenth Judicial District Court denying her claim for damages against the defendant-appellee, Aetna Casualty and Surety Company.

Merle Shelton, who was insured by defendant Aetna, hereinafter sometimes referred to as “property owner,” owned Lots 1 and 2, Square 22, Standard Heights Subdivision, East Baton Rouge Parish. His home is located on Lot 1 facing Linwood Street, and on the rear of the lot facing Chippewa Street is an apartment which was occupied by his elderly parents, Walter and Rosa Lee Shelton. The elder Shel-tons occupied the apartment under a usu-fruct granted by their son.

Upon the .contiguous Lot 2 is located a wooden garage, concrete driveway, garden area, a porch swing hanging from an A-frame, and a set of lawn chairs. This area was used extensively by the elder Sheltons and their friends and neighbors.

Early in the morning on June 3, 1973, property owner mixed a solution of lime, baking soda and water for the purpose of removing some flaking paint from the garage. After brushing the solution on the side of the brown-painted garage, he washed it down with a hose and departed at approximately 10:00 A.M. for the remainder of the day.

At approximately 6:00 P.M. that same day the elder Mrs. Shelton exited her apartment on Lot 1 and proceeded across the driveway toward the swing area on Lot 2 to sit and converse with her husband and another elderly friend, Mr. Edmond C. Lively. As the seventy-one year old mother reached the far edge of the concrete driveway and stepped upon the dirt pathway leading to the swing, her feet allegedly slipped on the residue which was washed from the garage, and she landed heavily in a sitting position. She was immediately transported to the Baton Rouge General Hospital where she was confined for the next eleven days suffering from a compression fracture of the spine at the fourth lumbar level (L-4). After discharge from the hospital, Dr. F. C. McMains, an orthopedic surgeon, continued to care for her as she still experienced radiating leg pains and required a back support. She was left with a IS percent permanent residual disability of the body as a result of the fall.

Mrs. Shelton testified that she did not notice anything unusual about the surface of the ground, either before or after she fell, but that some “goo” clung to her dress following the mishap. She acknowledged that she was familiar with and frequented the area with her husband. She also acknowledged that the spot where she slipped had been filled with fresh dirt prior to the incident. She, as well as Mr. Lively, asserted that the residue from the garage had formed a foamy substance which, because of the brown color of the paint being removed, could hardly be distinguished from the ground itself. Mrs. Shelton contended that because of the slippery nature of the substance and its camouflaged color she sustained the injuries of which she complained.

It is also clear from the record that the property owner knew that the area immediately adjacent to the garage was regularly used by his mother and father. It also appeared that the property owner did not attempt to clean or barricade the area to prevent persons from coming in contact with the removed paint and residue.

The trial judge concluded that Mrs. Shelton was a licensee upon her son’s property, Lot No. 2, and, therefore, his duty was to warn her of known dangers only, citing Mercer v. Tremont and Gulf Railway Company, 19 So.2d 270 (La.App. 2nd Cir. 1944), writ denied but unreported, October 3, 1944. The judge then stated:

“ * * * [T]he Court finds no reasonable basis for holding that he created a dangerous or hazardous condition calling for either removal of the residue or warning of its existence. Consequently, the Court finds no negligence on the part of Merle Shelton which should lead to any liability on his part.” (Written Reasons for Judgment, Record, p. 25)

The court found that the insurer Aetna provided for medical payments in the event of injury upon the insured’s premises, and as $117.75 still remained outstanding to Dr. McMains, the court awarded judgment in favor of the plaintiffs, Iris Shelton Ritter, Barney L. Shelton and Lois Shelton Math-erne, for that amount plus legal interest from date of judicial demand until paid. The expert witness fee of Dr. McMains was set at $75 and taxed as costs to the defendant.

The plaintiff contends the trial court erred in holding that Mrs. Shelton was a licensee rather than an invitee and consequently that the property owner owed a duty to reasonably inspect the premises and make it safe for her presence. Plaintiff also contends it was error to find that there was no negligence on the part of property owner which would lead to liability for the injuries complained of.

Ever since Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), and Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972), the courts of Louisiana have been applying the “duty-risk” approach to determine the existence of liability. It was first applied to duties imposed by statute in Dixie, and later to duties imposed by judicial edict in Hill. This same analysis has been utilized to determine a landowner’s liability to his invitee in Stewart v. Gibson Products Co. of Natchitoches Parish Louisiana, Inc., 300 So.2d 870 (La.App. 3rd Cir. 1974).

The first step in the duty-risk analysis is to make a determination of the cause in fact of the harm or injury. It has not been seriously contested that the presence of the “goo” which was created when the paint remover was applied to the garage and subsequently washed off was not a cause in fact of the injury to the plaintiff. This alone, however, does not establish liability. Additionally, it is necessary to ascertain whether the property owner breached a legal duty owed to the plaintiff. In the instant case, we think there was no breach of duty.

Utilizing the hindsight test of Hill, supra, we find that the instant injury was foreseeable, as evidenced by the fact that it did indeed happen. But as was aptly expressed in Stewart v. Gibson Products Company of Natchitoches Parish Louisiana, Inc., “. . . Just because a risk may foreseeably arise by reason of conduct, it is not necessarily within the scope of dxity owed because of that conduct.” (p. 878, emphasis supplied)

To determine whether a foreseeable event lies within the scope of duty owed to a plaintiff, we note the following guidelines from Hill, supra:

“Where the rule of law upon which a plaintiff relies for imposing a duty is based upon a statute, the court attempts to interpret legislative intent as to the risk contemplated by the legal duty, which is often a resort to the court’s own judgment of the scope of protection intended by the Legislature. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298; Pierre v. Allstate Ins. Co., supra. Where the rule of law is jurisprudential and the court is without the aid of legislative intent, the process of determining the risk encompassed within the rule of law is nevertheless similar. Malone, Ruminations on Dixie Drive It Yourself, 30 La.L.Rev. 363 (1970); McDonald, Proximate Cause in Louisiana, 16 La.L. Rev. 391 (1956). The same policy considerations which would motivate a legislative body to impose duties to protect from certain risks are applied by the court in making its determination. ‘All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape.’ Malone, Ruminations on Cause-In-Fact, 9 Stanford L. Rev. 60, 73 (1956).” (256 So.2d at 622-23)

We now apply these standards to the instant case.

Assuming the plaintiff was an invitee, the policy requiring this landowner to exercise a high degree of care toward her does not make him an insurer of the invitee’s safety. A landowner is not obliged to protect an invitee against every risk that may befall him while upon the premises, even though in hindsight it may appear to be foreseeable.

Policy dictates that in some circumstances, there is simply no duty owed to the aggrieved invitee.

The instant plaintiff was not a business patron, nor was the activity which caused the accident inherently dangerous so that policy would require the utmost of care as was the case in Stewart, supra. The plaintiff was likewise not a social guest who had visited the defendant’s home on the day of the activity which caused the injury. Rather, she was simply accorded the everyday privilege of the use of the landowner’s entire property, and was treated as any other member of the landowner’s household. It becomes apparent, therefore, that even though she was given a usufruct of a portion of Lot 1 and, therefore, impliedly and tacitly invited to use both Lots 1 and 2 as her needs required, the policy considerations underlying her invitee status would not impose a duty upon this landowner to protect her against the injury complained of.

Surely this landowner would be under no duty to the other members of his family who reside upon the premises to erect warning devices around his own garage to prevent their slipping and falling on the washings some eight hours after he removed paint therefrom. And it would be illogical to require him to do so with regard to the plaintiff, his own mother, who was living upon a portion of the two adjacent lots by virtue of a legal usufruct.

Honestly put, the plaintiff would have this Court erect an invisible line between Lot 1 whereon the plaintiff exercised her legal right, and Lot 2, whereon she did not possess a usufruct, and where the accident occurred. She would then urge us to apply the rules with regard to landowner and invitee and award her for her injury, simply because it happened upon Lot 2, whereon she had no usufruct and attained the confusing and illusive title of “invitee.” By so arguing, the plaintiff wants the best of two worlds; that is, treatment as one of the family with the privilege of co-occupying the entire premises with her landowner-son and his family, and in addition, she wants recovery for her injury based upon her contention that she is an invitee upon those very same premises.

As put by Professor Malone, supra, the rule should not apply to the facts of this controversy. The policy considerations behind the elevation of a person to the status of invitee does not impose a duty upon the landowner in the instant case to protect against the injury sustained to this particular plaintiff. We, therefore, agree with the trial court that the defendant landowner incurred no liability as a result of his mother’s fall on his premises.

Defendant Aetna has answered the instant appeal, contesting the award of $117.75 in medical expenses. They correctly point out that the instant suit was for the negligence of the landowner and no claim therein was made for payments pursuant to the contractual provisions of the insurance policy. There is no indication in the record that demand was made upon Aetna for the additional medical payments, nor is there any indication that Aetna refused to pay the same. Given those circumstances, it is premature to cast Aetna in judgment therefor.

For the foregoing reasons, the judgment of the Nineteenth Judicial District Court which denied the claim for damages by the plaintiff, Rosa Lee Shelton, against the defendants, Merle Shelton and the Aetna Casualty and Surety Company, is hereby affirmed.

The judgment, insofar as it awarded $117.75, together with legal interest from date of judicial demand, to the plaintiffs, Iris Shelton Ritter, Barney L. Shelton and Lois S. Matherne, is hereby reversed and set aside. In accordance therewith, the taxing of expert witness fees of $75 as court costs is also reversed and set aside. All costs of these proceedings are to be paid by appellant.

Affirmed in part, reversed in part, and rendered.

      . Following the filing of the suit, Walter Shelton died, and his children were substituted as parties plaintiff for the special damages which Mr. Shelton claimed as head and master of the community.


author: PRICE, Judge.

text:
    Charles Horace PARR et ux., Plaintiffs-Appellants, v. Michael ASAFF, Defendant-Appellee.
    No. 12716.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    James E. Franklin, Jr., Shreveport, for plaintiff s-appellants.
    Maynard E. Cush, Shreveport, for defendant-appellee.
    Before PRICE, DENNIS and MARVIN, JJ.
   PRICE, Judge.

The plaintiffs, Charles Horace Parr and Barbara Luanne Vest Parr, have appealed from the judgment of the trial court sustaining an exception of no cause or right of action, and dismissing their action against defendant, Michael Asaff. Plaintiffs in their petition initiating this suit alleged Mrs. Parr worked for the defendant in his construction business and was to receive an incentive payment or commission for any customers she obtained that resulted in sales. It is further alleged that Mrs. Parr obtained a purchaser for whom a house was ultimately constructed and sold for the sum of $33,000. Plaintiffs contend that pursuant to the agreement with defendant Mrs. Parr is entitled to receive 3% of the sales price, or $990.00 on this sale.

The defendant filed a peremptory exception of no cause and no right of action, stating that the incentive payment being claimed by Mrs. Parr was in effect a real estate commission and as neither plaintiff was a licensed real estate agent, they were prohibited recovery of any fee under LSA-R.S. 37:1450.

By supplemental and amended petition plaintiffs deleted from their original pleading the word “commission” and substituted the term “bonus” or “incentive payment” as the description of the arrangement with defendant under which recovery is sought.

On trial of the exception it was stipulated that plaintiffs were not licensed in accord with the statute relied on by defendant in his exception.

On the basis of the stipulation and the pleadings the trial judge sustained the exception of no right or cause of action.

On this appeal the thrust of plaintiff’s argument is that the allegations of their supplemental petition that the remuneration due results from “an incentive or bonus plan” rather than a “commission for sale of real estate” require a trial on the merits to determine whether the provisions of R. S. 37:1450 preclude recovery by plaintiffs from defendant.

We find no merit in this position and affirm the judgment appealed.

LSA-R.S. 37:1450 provides as follows:

“No person, not licensed in accordance with the provisions of this Chapter shall recover any fee, claim or charge for brokerage in the courts of this state.”

LSA-R.S. 37:1431 (3) defines “real estate broker” as follows:

“(3) ‘Real estate broker’ means any person who, for a compensation or valuable consideration sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of real estate, or who leases or offers to lease, or rents or offers for rent, any real estate or the improvements thereon for others as a vocation.”

LSA-R.S. 37:1437 provides:

“No person shall engage in the business or capacity, either directly or indirectly, of a real estate broker, a real estate salesman or a business chance broker unless he has a license under the provisions of this Chapter.”

LSA-R.S. 37:1450 is penal in nature and precludes access to the courts of this state for recovery of a commission by an unlicensed person who has engaged in the sale of real estate as a vocation. This court in Maniscalco v. Glass, 163 So.2d 438 (La.App. 2nd Cir. 1964) defined the term “vocation” as used in the statute to include part-time or occasional sales if the participation in such activity is one of the sources of a person’s income.

As we construe the allegations of plaintiff’s supplemental petition the remuneration claimed is a fee for the procurement of a contractual sale of real estate, and although it is called a “bonus” or “incentive pay”, it is nevertheless within the positive prohibition of the subject statute and the trial judge was correct in sustaining the exception of no right or cause of action.

The judgment appealed from is affirmed and all costs of this appeal are assessed to appellant.


text:
    Darlene Parker BRACKMAN, Plaintiff-Appellant, v. Melvin Henry BRACKMAN, Defendant-Appellee.
    No. 12722.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      Edmund M. Thomas, Shreveport, for plaintiff-appellant.
    Wilson & Veatch by Thomas A. Wilson, Shreveport, for defendant-appellee.
    Before PRICE, HALL and BURGESS, JJ-
   PRICE, Judge.

This is an appeal by the mother of two minor children from an adverse judgment awarding custody of the children to the father.

Melvin Henry Brackman was awarded a divorce from Darlene Parker Brackman on June 7, 1972, and in this proceeding by consent of the parties the custody of the children of the marriage, Mark Lloyd and Julie Renee, was granted to the paternal grandmother, Mrs. Pearl Brackman. On December 4, 1972, Melvin Brackman brought this proceeding seeking to have the judgment modified to award him the custody of the children.

Darlene Brackman by reconventional demand to the proceeding initiated by Melvin Brackman, and in a rule nisi against Melvin Brackman and the grandmother, Pearl Brackman, alleges she is presently a fit person to care for her children and asks their custody be awarded to her.

Trial of the opposing demands was ber gun in June, 1974, and finally concluded on October 29, 1974. Melvin Brackman sought to show his former wife was morally unfit to have custody of the children because of her addiction to alcohol and drugs and of her sexual promiscuity.

Darlene Brackman, although freely admitting a sordid past history of alcoholism, drug addiction and sexual misbehavior which lasted over a several-year span of her life beginning when she was 16 years old, now contends she has been rehabilitated and is capable of caring for her children and should be given their custody under the maternal preference rule.

The trial judge restricted the evidence as to the fitness of the opposing parties to matters taking place after the consent decree rendered on June 7, 1972.

It should be noted, since the prior judgment was by consent and no studied determination was made by the trial judge at that time, that neither the father nor mother are subject to the so-called “double burden” rule, nor is there any real issue made that it would be to the best interest of the children for the custody to remain with the paternal grandmother. In fact, the evidence shows that shortly after Pearl Brackman was granted their temporary custody pursuant to a consent judgment after the divorce decree in June, 1972, she allowed her son, Melvin Brackman, to take physical possession and control of the children which he has had through the present time.

Upon receiving the children from his mother, Melvin Brackman arranged for them to stay in the home of Fay Whitman in Shreveport. Brackman married Fay Whitman on October 13, 1972, and they established a home at Princeton in Bossier Parish. The Brackman children continue to reside in the residence along with two children of Fay Whitman Brackman by her previous marriage.

Shortly after the June 1972 divorce and custody proceeding Darlene Brackman moved from Shreveport to Houston, Texas. In September, 1972, she enrolled in a Texas Vocational Rehabilitation Program and in connection therewith received psychological evaluation and treatment from a psychologist, Dr. Samuel Toombs, of Houston. The deposition of Dr. Toombs was introduced in lieu of his testimony by Darlene Brackman. Dr. Toombs testified that Darlene Brackman related to him on her first visit that she had previously had a very severe drinking problem and had used drugs. She also advised him she had not used alcohol or drugs since January, 1972. She was at that time, however, having hallucinations and was diagnosed by Dr. Toombs as having “a behavioral distortion characterized by high anxiety, low effective relations to others, and intense conflict.” He found her to have sufficient disability in functioning to be eligible for vocational rehabilitation. Dr. Toombs attributed the cause of her condition to prior alcoholism coupled with use of drugs. He did not find her to be schizophrenic or that she had any basic mental defect, neurosis or psychosis. In his opinion she was not using alcohol or drugs at the time he first saw her, nor during the period of sixteen months that he treated her after September, 1972. He was further of the opinion that at the conclusion of her period of therapy she was fully capable of taking care of her children and functioning as a normal parent.

During the period between July, 1972, and January, 1974, while living in Houston, Darlene Brackman made periodic visits back to Shreveport to visit the children and on one occasion during the summer of 1973, took the children to Houston for a visit of approximately ten days. After moving back to Shreveport in January of 1974, she obtained employment with a contractor doing painting and reconditioning work for the Federal Housing Administration on repossessed property. She resides in a two bedroom apartment in an apartment complex on Linwood owned by the LSU Medical School.

Darlene Brackman testified she is an active member of Alcoholics Anonymous and has not used alcohol or drugs since January, 1972. In corroboration of her testimony two members of the local AA unit of which she is a member testified that they were of the opinion she had not used alcohol during the time they were acquainted with her. She was forthright in her testimony concerning her sexual behavior since her divorce in June, 1972. She admitted living with a man in Houston for a period of approximately three months, with the intention of marrying him. He was also a member of AA and their relationship terminated when this individual began drinking again.

She further testified she has been dating her employer in Shreveport who is an unmarried man. Under cross-examination she admitted having sexual relations with this individual but denies having done anything improper when the children have been visiting in her home, or when she has carried them to her employer’s apartment. She testified she eventually intends to marry this individual after re-establishing a firm relationship with her children.

Dr. Earl W. Harris, Jr., a psychiatrist of Shreveport, testified he had evaluated Darlene Brackman and found she was an arrested alcoholic who could, in his opinion, properly assume the role of caring for her children. Under cross-examination Dr. Harris affirmed that based on a history of alcoholism and amphetamines addiction there is always a high probability of a relapse under unusual stress or strain.

On the basis of the foregoing resumé of evidence the trial judge awarded the permanent custody of the children to the father, subject to reasonable rights of visitation of the mother.

On this appeal Darlene Brackman contends the trial judge’s ruling is in violation of the “maternal preference rule” as declared by the Supreme Court in the case of Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), and Nethken v. Nethken, 307 So.2d 563 (La.1975). Other than re-emphasizing the general rule “that it is in the best interest of children of the marriage to grant custody to the mother, especially when they are of tender years”, we do not find the result reached in either Fulco or Nethken to materially support appellant’s position. Both gave recognition to the much discretion accorded a trial judge in custody determinations and to the prevailing jurisprudential rule in any custody decision that the primary concern is what is in the best interest of the child.

Appellant argues the trial judge found her unfit solely on the basis of a continuing illicit sexual relationship which, under the circumstances shown, would not be detrimental to the children’s moral welfare.

Although we acknowledge the trial judge’s written reasons are somewhat restricted to this interpretation, we do- not find he has reached an erroneous result based on all the evidence before him.

The underlying reason for the preference given the mother to custody of young children is to continue them in the care of the parent who, in a normal situation, has provided the degree of continuous care and affection which creates such a close bond that it would be harmful to the children to alter the relationship by granting custody to the father.

When the children have remained away from the mother for a substantial period of time and have been cared for by the father or some other person, the rationale of the maternal preference rule becomes of less importance in determining what is in the best interest of the children.

This court on three occasions has recently affirmed the trial court’s award of custody of minor children to the father where it appears to be in the best interest of the children, even in the absence of a finding of moral unfitness on the part of the mother. See Murphy v. Murphy, 293 So.2d 909 (La.App. 2nd Cir. 1974); Pipes v. Pipes, 293 So.2d 925 (La.App. 2nd Cir. 1974), and Welch v. Welch, 307 So.2d 737 (La.App. 2nd Cir. 1975). In all three of the above cited cases the children had been physically cared for by the father for a substantial period of time and the trial court found it in the best interest of the child to remain in the home of the father.

We are aware that the record shows the initial placement of the children under the control of the father was not in accord with the temporary custody award made by the court under the consent decree on June 7, 1972. We are further cognizant of the inference in the evidence that Melvin Brackman was dating Fay Whitman at the time she began keeping the children for him in July, 1972. We further understand he spent considerable time at her residence at night after work. Although these circumstances may not have been ideal for the .moral welfare of the children, we are impressed that these parties did marry as soon as all legal impediments were removed and have apparently established a suitable home in a rural area of Bossier Parish for the rearing of the children of their prior marriages.

There is evidence showing the physical and spiritual needs of the children are being taken care of by the father and his present wife.

We conclude that under all of the circumstances presented in this case the award of custody of the children to the father was in their best interest.

In accord with the foregoing reasons the judgment appealed from is affirmed and cost of this appeal is assessed to appellant.


author: HALL, Judge.

text:
    James R. SIMS, Plaintiff-Appellant, v. Murphy R. TOLAR, Jr., and Zurich Insurance Company, Defendants-Appellees.
    No. 12719.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    Writ Refused Jan. 30, 1976.
    Holloway, Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Leon H. Whitten, Jonesboro, and Davenport, Files & Kelly by Thomas W. Davenport, Jr., Monroe, for defendants-appellees.
    Before PRICE, HALL and BURGESS, JJ-
   HALL, Judge.

Three suits were filed arising out of a collision between a southbound pickup truck driven by defendant, Murphy R. To-lar, Jr., and a northbound pickup truck owned by plaintiff, Lester Mack Henning, driven by Ronald David Gryder, in which Henning and plaintiff, James R. Sims, were passengers. The collision occurred at approximately 7:30 a. m. on November 11, 1972, on a straight stretch of Louisiana Highway 34 in Jackson Parish, at a point north of the crest of a hill which slopes down toward the north.

Henning, Gryder and Sims filed separate suits for property damage and personal injuries against Tolar and his insurer, Zurich Insurance Company. Defendants denied liability. In the Henning and Sims suits, Tolar and Zurich filed alternative third party demands against Gryder and Henning.

“After trial, pursuant to excellent written reasons for judgment prepared by the trial judge, judgments were rendered in favor of defendants, rejecting the demands of all plaintiffs. Sims and Henning perfected devolutive appeals in their suits. The Gry-der suit is not before this court. For the reasons expressed in the district court’s reasons for judgment and in this opinion, the judgments are affirmed.

Gryder, Henning and Sims spent the night prior to the accident out on the town in Monroe, drinking beer and dancing. They returned to Chatham in the early morning, stopping at a cafe to eat breakfast and drink coffee. They left the cafe and were headed north with Gryder driving Henning’s pickup truck when the accident happened. A laboratory report of a blood test administered to Gryder about two hours after the accident established the alcoholic content of his blood at 0.148 percent. The trial judge correctly determined on the basis of the parties’ own testimony, the laboratory report, and the testimony of witnesses who saw them at the cafe that Gryder was intoxicated at the time of the accident.

Defendant, Tolar, was on his way home after working the graveyard shift at the Olin Mathieson Plant, headed south. He testified the Gryder truck crested the hill and the impact occurred shortly thereafter near the center of the road, but on Tolar’s side of the yellow line marking the center of the highway. He testified he had no chance to avoid the collision.

Gryder, who was rendered unconscious and received rather severe injuries, testified he remembered nothing about the accident. Henning testified he did not see what happened because he had dropped something and had leaned over to pick it up at the time the impact occurred. Sims testified he was watching and saw Tolar come across the center line with the impact occurring in Gryder’s northbound lane, Sims told the doctors who examined him after the accident he did not know how it happened. The trial judge was of the opinion Sims did not know how the accident happened.

The investigating state troopers testified it was impossible to determine the point of impact from physical evidence, or lack thereof, at the immediate scene of the accident. They identified skid marks shown in photographs taken by a trooper at the scene. The skid marks are inconclusive as to point of impact. They most likely were laid down after impact. They tend to support Tolar’s version, indicating Tolar’s left tire was about twenty inches inside his southbound lane and Gryder’s right tire was in the northbound lane at a point which would have put the left side of his vehicle across the center line in the southbound lane.

Sergeant Durham testified he never, in his experience, saw an accident scene more void of physical evidence and that no point of impact could be determined. The trial judge agreed with the sergeant, stating he had never seen a case so void of evidence on which to establish fault. The trial judge held plaintiffs failed to carry the burden of proof imposed on them. This conclusion is manifestly correct.

Appellants argue the evidence shows To-lar came over on the wrong side of the road and struck the Gryder vehicle. The evidence does not support such a finding.

Appellants argue Gryder’s intoxication does not bar their recovery. The holding of the district court and this court is not that plaintiffs are barred from recovery by Gryder’s negligence, but is that plaintiffs cannot recover because they have not proved fault on the part of Tolar.

Appellants emphasize a statement made by Tolar after the accident to the effect that he guessed it would be his fault — he guessed he was on the wrong side of the road. Tolar satisfactorily explained this statement as made in a facetious manner —guessing the other people would make such a claim.

For the reasons assigned, the judgments of the district court are affirmed at appellants’ costs.

Affirmed.


text:
    Lester Mack HENNING, Plaintiff-Appellant, v. Murphy R. TOLAR, Jr. and Zurich Insurance Company, Defendants-Appellees.
    No. 12720.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Refused Jan. 30, 1976.
    Holloway, Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.
    Leon H. Whitten, Jonesboro, and Davenport, Filed & Kelly by Thomas W. Davenport, Jr., Monroe, for defendants-appellees.
    Before PRICE, HALL and BURGESS, JJ-
   HALL, Judge.

For the reasons assigned in the opinion rendered this same date in Sims v. Tolar et al., La.App., 322 So.2d 318, the judgment of the district court rejecting plaintiff’s demands is affirmed at plaintiff-appellapt’s costs.

Affirmed.