author: BLANCHE, Judge.

text:
    Thomas U. PERKINS, Plaintiff-Appellant, v. STATE BOARD OF EDUCATION, Defendant-Appellee.
    No. 12208.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Writ Refused Jan. 12, 1979.
    Gregory F. Gambel, New Orleans, for Thomas Perkins, plaintiff-appellant.
    Esmond Phelps, II, New Orleans, for State Bd. of Ed., defendant-appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff, Thomas U. Perkins, appeals an adverse judgment of the trial court which held the defendant not negligent and denied plaintiff recovery in tort.

In the fall of 1972, plaintiff, thirty-four years old and a student of Southeastern University, was injured while attempting a surface dive in connection with a lifesaving course he was taking at the time. The course was taught by Harvey Theriot, an employee of the defendant, the Louisiana State Board of Education. Theriot was fully qualified to teach the course. Perkins was absent from class on October 5, the day the surface dive was introduced to the class by Theriot. He was also tardy the following class period, October 10, when Theriot reviewed the elements of the skill with the class. During this class period, plaintiff was unable to execute the dive to a satisfactory degree. As a result, Perkins asked a fellow student to assist him after class. Theriot, as was his practice, allowed the pair to remain in the pool after class and stayed in the pool area, himself to act as lifeguard. After watching the other student demonstrate the skill, Perkins again attempted the dive in about eight and a half feet of water. As a result of the attempt, Perkins struck his head on the bottom of the pool.

Subsequently, plaintiff instituted an action against the State Board of Education to recover damages for personal injuries allegedly sustained in the accident claiming, inter alia, that he had not been instructed to put his arms over his head to avoid collision with the bottom of the pool. The trial court refused to find the defendant negligent for failing to give the plaintiff personal and individual instruction on the manner of executing the dive. We affirm.

Plaintiff’s assignments of error are as follows:

(1) The trial court erred in not finding that Harvey Theriot failed to properly instruct plaintiff as to the correct manner in which to perform the surface dive and as to the reasonable precautions which must be observed.
(2) The trial court erred in failing to find that Harvey Theriot breached his duty to the plaintiff by failing to properly supervise the exercise after class.

The standard of care owed by a school to its students was accurately set forth in the recent and well reasoned opinion of Prier v. Horace Mann Insurance Company, 351 So.2d 265 (La.App. 3rd Cir. 1977), writ denied, 352 So.2d 1042 and 352 So.2d 1045 (La.1977):

“Our jurisprudence is settled that a school board is not the insurer of the lives or safety of children. School teachers charged with the duty of superintending children in the school must exercise reasonable supervision over them, commensurate with the age of the children and the attendant circumstances. A greater degree of care must be exercised if the student is required to use or to come in contact with an inherently dangerous object, or to engage in an activity where it is reasonably foreseeable that an accident or injury may occur. The teacher is not liable in damages unless it is shown that he or she, by exercising the degree of supervision required by the circumstances, might have prevented the act which caused the damage, and did not do so. It also is essential to recovery that there be proof of negligence in failing to provide the required supervision and proof of a causal connection between that lack of supervision and the accident. Whitfield v. East Baton Rouge Parish School Board, 43 So.2d 47 (La.App. 1st Cir. 1949); Nash v. Rapides Parish School Board, 188 So.2d 508 (La.App. 3rd Cir. 1966); Station v. Travelers Insurance Company, 292 So.2d 289 (La.App. 1st Cir. 1974); Simmons v. Beauregard Parish School Board, 315 So.2d 883 (La.App. 3rd Cir. 1975); Partin v. Vernon Parish School Board, 343 So.2d 417 (La.App. 3rd Cir. 1977); Richard v. St. Landry Parish School Board, 344 So.2d 1116 (La.App. 3rd Cir. 1977).” (351 So.2d 268)

Examining the plaintiff’s first assignment of error, that Theriot failed to properly instruct and warn the plaintiff, we agree with the trial judge who noted in his opinion:

“ * * * The Court feels that proper instruction is one of the many elements of the reasonable precautions required by our courts. That instruction is required on the basis of the increased risks to the student over what is to be expected from classroom instruction. Where a school in the normal course of instruction, places a student in a more perilous situation than in an ordinary classroom, it owes that student a duty of proper instruction. That duty does not require that each student receive the instruction, but that adequate instruction be offered. It would be a serious blow to schools in general and universities in particular (who lack sanctions to compel attendance), to impose liability in a case where adequate instruction was offered but not received due to some neglect on the part of the student. * * * ” (Record, pp. 101, 102)

This is not to say, however, that there may never be a time when individual and personal instructions must be given. The existence of such a duty would depend upon the age and experience of the student, as well as the nature of the danger involved.

In the instant case, the evidence shows that the plaintiff was thirty-four years old at the time of the accident, had been swimming since he was eight or nine, had received some prior swimming training in the armed services, and was entered in an advanced course of swimming instruction at the college level. The testimony of instructor Theriot establishes to our satisfaction that the surface dive was an elementary skill necessary to accomplish other skills to be taught in the course. The purpose of the dive is to submerge the rescuer so that he may approach the victim from under the water. We believe the surface dive was not so dangerous, nor the plaintiff so young and inexperienced, as to create a duty of individual instruction. We also note that Ther-iot made available to the plaintiff four opportunities to learn the elements of the dive. We, therefore, agree with the trial court that the defendant fulfilled its duty to offer adequate instruction, and we reject the plaintiff’s first assignment of error.

Plaintiff’s second assignment of error is that the trial court erred in failing to find that Theriot negligently failed to properly supervise plaintiff’s activity after class. The evidence indicates that Perkins’ accident occurred after the regular class period had ended. Also, Perkins’ decision to stay after class and his engaging a classmate to aid him were based wholly upon his own initiative. The instructor’s job at this time, according to his testimony, was to remain in the pool area as a lifeguard to prevent drownings. We agree with the trial court that the law only requires that supervision be reasonable and commensurate with the age of the student and the attendant circumstances. Theriot had three times in class given instruction on how to execute the surface dive which we have already determined to have been nonhazardous under the circumstances. We believe Theriot’s conduct was consistent with the reasonable standard of care imposed. As noted in an earlier decision by this Court:

“ ‘The fact that each student is not personally supervised every moment of each school day does not constitute fault on the part of the School Board or its employees.’ ” (Banks v. Terrebonne Parish School Board, 339 So.2d 1295 [La.App. 1st Cir. 1976])

We likewise find plaintiff’s second assignment of error to be without merit.

As a result of the above findings that defendant breached no duty owed to the plaintiff, we pretermit defendant’s claim that the plaintiff is barred from recovery by contributory negligence.

The judgment of the trial court is affirmed for the reasons set forth above, plaintiff-appellant to pay all costs of this appeal.

AFFIRMED.

      . The dive consisted of the following: the rescuer swims toward a drowning victim who is floundering on the surface of the water; approximately six feet from the victim, the rescuer lowers his head into the water, tucks at the waist, keeps his legs together in a pike position and his momentum carries him beneath the surface of the water. (There are other methods, all with the same goal.)

      . (1) Lecture on October 5; (2) review on October 10; (3) continued instruction during practice in class on October 10; (4) reading material assigned for the class of October 10.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    Sidney COSEY, Jr., Plaintiff-Appellee, v. Lillian Jonpierre Tyler COSEY, Defendant-Appellant.
    No. 12210.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Rehearing Denied Nov. 20, 1978.
    Writ Granted Jan. 19, 1979.
    Ernest G. Drake, Jr., Ponchatoula, for Sidney Cosey, Jr., plaintiff-appellee.
    James D. Johnson, Jr., Hammond, for Lillian Jonpierre T. Cosey, defendant-appellant.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

Sidney Cosey was married to Hattie Harris Cosey on November 14, 1915, and they had one son, Sidney Cosey, Jr., who was born in August, 1916. There was a non-judicial separation between Mr. and Mrs. Co-sey in about 1935, and they never again lived together.

On March 18, 1945, Sidney Cosey entered into a Bond for Deed contract with the C. E. Cate Estate, in which the Cate Estate agreed . .to convey and assure to the said party of the second part, in fee simple, clear of all incumbrances whatever, by a good and sufficient Warranty Deed . ” an 11-acre tract of ground in Tan-gipahoa Parish, upon payment by Mr. Cosey of $825 in stipulated installments. On May 25, 1961, Mr. Cosey made the last payment on the property, but, because of the death of one of the owners, the Cate Estate was unable to deliver title at that time.

On May 28, 1962, Sidney Cosey and Hattie Harris Cosey were divorced, and on June 10, 1962, he married Lillian Jonpierre Tyler Cosey.

On December 7, 1962, the owners of the Cate Estate transferred the 11-acre tract to “Sidney and Lillian Cosey, once married and living together,” and the deed was duly recorded in the records of Tangipahoa Parish.

Hattie Harris Cosey died on December 27, 1964, and Sidney Cosey died on August 29, 1976, survived by his wife, Lillian. Sidney Cosey, Jr. opened their successions and qualified as administrator thereof on November 5, 1976.

Thereafter, this suit was brought by Sidney Cosey, Jr. as administrator of the successions of his parents, and as their sole heir, against Lillian Jonpierre Cosey, and the owners of the Cate Estate, asking for judgment decreeing that the 11-acre tract of land belongs to the community that existed between Sidney and Hattie Cosey, and “. . . for declaratory judgment correcting the marital status . . . ” in the deed to Sidney and Lillian Cosey.

After trial on the merits, judgment was rendered as prayed for by plaintiff, and Lilliam Jonpierre Cosey has appealed.

Basically, it is plaintiff’s case that, since the property was paid for with funds belonging to the first community, title to the property should be vested in that community, and the second community should have no interest therein.

Article 2402 of the Civil Code provides, in part:

“This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.”

The Supreme Court has held that, in the case of immovable property, acquisition by purchase, under Article 2402 “. means that there must be an act of sale transferring title to real property, and not merely an agreement to sell.” Kendall v. Kendall, 174 La. 148, 140 So. 6 (1932). It is also settled, with respect to immovable property that “. . . neither consent, nor delivery, nor payment of price suffice to transfer the ownership; there must be a deed translative of the title.”

A bond for deed contract is not a sale, and title is not transferred thereby, even when payment in full is made according to its terms. R.S. 9:2941; St. Landry Loan Company v. Etienne, 227 So.2d 599 (La.App. 3rd Cir. 1969).

In the Kendall case, supra, in which a bond for deed was executed and most of the payments made during one community regime, and title taken during a subsequent community, the Supreme Court, applying the foregoing principles found as follows:

“The evidence in the case shows positively that the title to the lot in question was not transferred until the act of sale to Sam Kendall was made December 4,1920, during the existence of the community between Kendall and defendant, Leander Kendall. The property, therefore, clearly belongs to this, the third community.”

The same situation exists in this case, and we find that the property belongs to the community between Sam Cosey and defendant, Lilliam Jonpierre Cosey.

The judgment appealed from is reversed and set aside, and there will be judgment herein in favor of defendant, Lillian Jon-pierre Tyler Cosey and against plaintiff, Sam Cosey, Jr., dismissing plaintiff’s suit at his cost.

REVERSED AND RENDERED.


author: SARTAIN, Judge.

text:
    Richard Kent CASHIO v. Becky Marchand CASHIO.
    No. 12214
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.

      Andrew Jack Bennett, Jr., Baton Rouge, of counsel for plaintiff Richard Kent Ca-shio.
    Teddy W. Airhart, Jr., Baton Rouge, of counsel for defendant Becky Marchand Ca-shio.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   SARTAIN, Judge.

The issue before us relates to the applicability of C.C.P. art. 123 (forum non conven-iens) in a summary proceeding to modify a custody decree.

The facts which are not in dispute are: Richard Kent Cashio (Respondent) and Becky Marchand Cashio (Relatrix) last resided together in Ascension Parish. The community of acquets and gains and the marriage between these parties were dissolved by judgments rendered in the 23rd Judicial District Court for Ascension Parish. In each instance Relatrix was awarded the custody of their minor child, Richard Kent Cashio, Jr. The record reflects that throughout these proceedings there were numerous rules, viz: to fix visitation, increase or decrease alimony or child support, contempt, etc., all of which were before the Ascension Parish court.

The instant rule for change of custody was filed by Respondent in the 23rd Judicial District Court on July 22, 1977, and was made returnable in that court on September 19, 1977. Relatrix was also ordered to appear at a designated location on August 22, 1977, for deposition purposes. The record does not reflect why the matter was not heard on the return date of September 19, 1977.

On December 12, 1977, Respondent filed a rule to transfer this matter to the Family Court for the Parish of East Baton Rouge, which rule was made returnable on January 3, 1978. Respondent’s motion averred that both parties and the minor child were then residing in East Baton Rouge Parish as were a majority of the anticipated witnesses. At a hearing on this return date, Rela-trix, who was served through her then attorney of record, made no appearance and the record before us is devoid of any explanation for her absence. After hearing Respondent’s evidence, the judge of the 23rd Judicial District Court ordered the cause transferred to the Family Court in East Baton Rouge Parish.

On March 29, 1978, when Respondent endeavored to proceed further, Relatrix filed a declinatory exception of improper venue and, alternatively, a motion to transfer the matter back to the Ascension Parish Court on the respective grounds that the latter court was without authority to transfer the matter in the first instance and that she and the minor now resided and were domiciled in Ascension Parish. The judge of the Family Court overruled the exception and denied the motion to re-transfer. The judge a quo, however, stayed further proceedings pending Relatrix’s application for writs, which we granted.

At the hearing in the Family Court it was established that Relatrix was residing in Baton Rouge in January of 1978 but had returned to Ascension Parish sometime during the first week of February, 1978. She and her present husband were then awaiting the completion of their new home. There is not the slightest contention that her return to Ascension Parish was motivated by this litigation.

Respondent contends (1) that it was proper for the Ascension Parish District Court to order the matter transferred to the East Baton Rouge Parish Court and (2) that Re-latrix having failed to appeal or seek writs from that order, the issue of the transfer is now final. We shall dispose of the latter contention first and, for the limited purpose of doing so, we assume, arguendo, that C.C.P. art. 123 permits such an order.

C.C.P. art. 1841 defines an interlocutory judgment as one “that does not determine the merits but only preliminary matters in the course of the action . . ..” It is clear that the order of transfer falls within this definition and is an interlocutory judgment from which no appeal lies as irreparable injury is not presumed. An aggrieved party’s recourse for review of such an order is a supervisory writ. C.C.P. art. 123, 2083, Communication C. Net., Inc. v. Burger Chef of Louisiana, Inc., 291 So.2d 849 (La.App. 4th Cir. 1974).

The timeliness of an application for supervisory writs to have a transfer order reviewed is another matter. The transfer of any cause under the principal of forum non conveniens is a matter that addresses itself to the sound discretion of the trial judge. The theories of “res judicata” and “law of the case” are not applicable. Wall v. American Employers Insurance Co., 250 So.2d 172 (La.App. 1st Cir. 1971). Our Civil Code does not prescribe a time limit within which an aggrieved party must seek writs of review from such an order. Whether a writ is granted in a given situation is a matter that addresses itself to the reviewing court under its supervisory jurisdiction. Respondent’s contention as to the finality of the transfer order is rejected.

We now turn to the principal issue of whether C.C.P. art. 123 is applicable in a summary proceeding to modify a custody decree. For reasons hereinafter stated, we hold that it is not.

The article provides:

“Art. 123. Forum non conveniens
For the convenience of the parties and the witnesses, in the interest of justice, a district court upon contradictory motion, or upon the court’s own motion after contradictory hearing, may transfer a civil case to another district court where it might have been brought, provided, however, that no suit brought in the parish of which the plaintiff is domiciled, and which court is otherwise a court of competent jurisdiction and proper venue, shall be transferred to any other court pursuant to this article.” (Emphasis ours)

The official Comment on the article states that it was added to the Code (Act 294 of 1970) on the recommendation of the Louisiana Law Institute to legislatively overrule this court’s holding in Trahan v. Phoenix Ins. Co., 200 So.2d 118 (1967), cert. den. 251 La. 47, 202 So.2d 657 (1967).

In Trahan, we noted that the common law doctrine of forum non conveniens was foreign to our jurisprudence and that its application must yield to our statutory rules on venue. We reversed the trial court’s conclusion that C.C.P. Art. 122 impliedly recognized the doctrine. Our Supreme Court found “no error of law . . . ” in our decision.

We do not believe that C.C.P. art. 123 was intended to apply to a proceeding seeking to modify the custody decree. The article expressly recognizes that it permits transfer of cases only in those instances where the original action could also have been brought in the parish court to which the matter is sought to be transferred. In the instant cause the Ascension Parish District Court and the East Baton Rouge Parish Family Court would have to be courts possessed of common venue. We find that they are not.

The issues of jurisdiction and venue are areas in family litigation that have proved to be most troublesome for our trial and appellate courts. However, our courts, with few exceptions, have consistently rejected any theory of common venue as between the district courts of this state. To the contrary, the basic rule which has been rather uniformly adhered to is that once a district court of this state has rendered a judgment awarding custody and/or child support to a particular parent, that court retains exclusive jurisdiction to modify its own decree. Pullen v. Pullen, 161 La. 721, 109 So. 400 (1926).

The problem of venue, vis a vis, modification of a custody decree, is best illustrated in Lucas v. Lucas, 195 So.2d 771 (La.App. 3d Cir. 1966), writ refused 250 La. 539, 197 So.2d 81 (1967). In that case, Mr. and Mrs. Lucas were divorced in Caddo Parish and Mrs. Lucas was awarded the custody of their two minor children. She and the children then moved to Mexico. Later, Mr. Lucas, in the Caddo court, sought a modification of the custody award. The Caddo court sustained an exception to the jurisdiction of that court on the grounds that the mother and the children were domiciliaries of Mexico. Under the authority of Nowlin v. McGee, 180 So.2d 72 (La.App. 2d Cir. 1965), the Supreme Court denied certiorari, 248 La. 527, 180 So.2d 541 (1965). The father then went to Mexico and removed the children without the mother’s knowledge or consent to Rapides Parish where he filed a suit for their custody. The trial court in Rapides Parish sustained the mother’s exception to jurisdiction holding that if any court of this state had jurisdiction it was that of Caddo Parish. On its initial hearing, a three judge panel of the Court of Appeal, Third Circuit, with one dissent, affirmed. However, on rehearing an en banc court reversed with two dissents. In denying writs, our Supreme Court only concluded that “the result reached by the Court of Appeal is correct.” There were two dissents from that view. We have particularized the above only to point out the extent of the disagreement that surrounds the issue of venue in matters relating to the modification of a custody decree.

In Lucas, on rehearing, the majority did state: 195 So.2d 771, 778

“However, a majority of this court is now of the opinion that the Caddo Parish court, which rendered the original custody decree in the divorce proceedings, did not retain forever the exclusive jurisdiction and venue to modify that decree. This question is res nova in Louisiana.” (Emphasis ours.)

On at least three occasions, however, since it rendered Lucas, the Third Circuit has seen fit to limit its holding and to restrict its application. Caldwell v. Gilbert, 253 So.2d 639 (La.App. 3d Cir. 1971); White v. White, 272 So.2d 469 (La.App. 3d Cir. 1972); and Hopkins v. Hopkins, 300 So.2d 661 (La.App. 3d Cir. 1974).

In Hopkins, the court stated: 300 So.2d 661, 662

“In view of the difficulty which the Lucas case seems to have caused, we want to make it clear that the decision in that case is limited to the narrow and peculiar facts involved. It is not authority for multiple venue in various facets of matrimonial litigation and should not be so construed.
“We have no hesitancy in reaffirming the following rule: once the venue of the trial court has attached, it continues exclusively for the purpose of modifying the alimony or child support judgment. Caldwell v. Gilbert, 253 So.2d 639 (La.App. 3 Cir. 1971); White v. White, 272 So.2d 469, (La.App. 3 Cir. 1972).
“Likewise, the same rule applies to orders concerning custody and visitation. Only under exceptional circumstances as in Lucas should a district court other than the court of original jurisdiction undertake to change a custody order or its incidents.”

Lastly, we must state that, assuming the applicability of C.C.P. art. 123, the Judge of The Family Court should have transferred this cause back to Ascension Parish on Relatrix’s alternative motion. If one of the grounds in the initial transfer was that Relatrix and the child were then residing in East Baton Rouge Parish, those same grounds existed when she asked that the matter be returned to the court of her domicile. A material delay would not have resulted. For whatever reason there was, time did not appear to be of the essence as it usually is in such cases. Some five months had lapsed between the first filing of the rule for modification of custody and Respondent’s motion to transfer. The latter motion was not filed until some three months after the original return date was permitted to pass.

Accordingly, for the above reasons, the judgment of The Family Court for the Parish of East Baton Rouge overruling Rela-trix’s declinatory exception of venue and alternative motion to transfer this matter to the 23rd Judicial District Court for the Parish of Ascension is reversed, recalled, and set aside and judgment is rendered herein sustaining Relatrix’s exception of venue and ordering this cause transferred from The Family Court for the Parish of East Baton Rouge to the 23rd Judicial District Court for the Parish of Ascension. All costs incidental to this writ are assessed against Respondent. All other costs are to await a final determination on the rule to change custody.

WRIT MADE PEREMPTORY, REVERSED AND RENDERED.

      . The same rule has been acknowledged in Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); Wheeler v. Wheeler, 184 La. 689, 167 So. 191 (1936); Lukianoff v. Lukianoff, 166 La. 219, 116 So. 890 (1928); Graves v. Graves, 122 So.2d 350 (La.App. 2d Cir. 1960); Blackburn v. Blackburn, 168 So.2d 898 (La.App. 2d Cir. 1964). However, in considering these authorities the question of venue as opposed to that of jurisdiction must be kept in mind.


text:
    Robert Mark STEPHENS v. CONTINENTAL INSURANCE COMPANY and David T. Thibaut, Jr.
    No. 12222.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Ralph W. Brewer, Baton Rouge, of counsel, for plaintiff-appellant Robert Mark Stephens.
    John B. Noland, Baton Rouge, of counsel, for defendants-appellees Continental Insurance Company and David T. Thibout, Jr.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

This is a suit for damages for personal injuries arising out of an automobile accident, brought by Robert Mark Stephens against David T. Thibaut, Jr., and Continental Insurance Company, his insurer. Liability was stipulated by defendants, and the only question presented to the trial court was whether the surgical removal of a pilonidal cyst was necessitated by the accident. The trial judge found that it was not, and awarded plaintiff only nominal damages. Plaintiff has appealed.

Plaintiff testified that on September 17, 1976, his vehicle was struck from the rear and that he was “ . . . jolted back into the seat pretty hard.” He suffered some soreness in his neck and spine, which cleared up shortly, the neck in three or four days and the spine in about a month. He testified that it was “ . . nothing that I would, say, go to the doctor about.”

When he got home he noticed he was bleeding from the base of his tailbone. He dabbed some alcohol on the site of the bleeding and the next day, consulted Dr. David Miller. Dr. Miller examined him and told him to keep an eye on it. The bleeding persisted and plaintiff called Dr. Chesnutt, who referred him to Dr. Gordon W. Peek, a general surgeon.

Dr. Peek saw plaintiff on September 21, four days after the accident, and diagnosed an infected pilonidal cyst. He treated the infection, and after it subsided, operated and removed the cyst. It was Dr. Peek’s opinion that there was no causal connection between the accident and the infection of the cyst.

Dr. Miller had recognized the condition as a pilonidal cyst, and observed a very small amount of material coming out. He was of the opinion that the discharge was a result of the accident, but that the cyst itself was not related to the accident, and that the accident had no effect on the cyst.

The trial judge found that plaintiff had not proved a causal connection between the accident and the removal of the cyst by a preponderance of the evidence. Plaintiff claims that the trial judge placed too great a burden of proof on him. He relies on the rule stated in Peppers v. Toye Bros. Yellow Cab Co., 198 So. 177 (La.Orl.App.1940).

“ . . . where a person who enjoys good health suffers an accident and within a short time thereafter a dormant preexisting illness or old injury disconnected with the accident flares up or becomes active, it will be presumed that the flare up was not a coincidence and that it was set in motion as a direct result of the accident. And it is sufficient for the plaintiff, in order to cast the burden of proof upon the defendant, to show by medical testimony that there is a reasonable possibility that the result claimed for did happen.”

That rule has no application in this case, in which there is no showing that the cyst was in any way aggravated by the accident, although the discovery of its existence might be attributable thereto. The operation was necessitated by the infection, which neither doctor could relate to the accident.

The judgment appealed from is therefore affirmed at plaintiff’s cost.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    OLD JEFFERSON CIVIC ASSOCIATION, INC. v. PLANNING COMMISSION FOR the CITY OF BATON ROUGE and the PARISH OF EAST BATON ROUGE.
    No. 12225.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Rehearing Denied Nov. 20, 1978.

      Stephen M. Irving, Baton Rouge, for plaintiff-appellee Old Jefferson Civic Ass’n, Inc.
    Stephen R. Wilson, Asst. Parish Atty., Baton Rouge, for defendants-appellants Planning Commission for the City of Baton Rouge and the Parish of East Baton Rouge.
    J. David McNeill, III, Baton Rouge, for defendant-appellee Jefferson Hills, Inc.
    James F. Pierson, Jr., Baton Rouge, for defendant-appellee D’Agostino & Ellzey Dev. Co.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit by the Old Jefferson Civic Association, Inc., and others, against the Planning Commission for the City of Baton Rouge and the Parish of East Baton Rouge, the City of Baton Rouge, the Parish of East Baton Rouge and the Baton Rouge-East Baton Rouge City-Parish Council seeking an injunction and writs of mandamus ordering the holding of public hearings prior to the granting of final approval of, and the erasure of the words “preliminary approval granted” on plats submitted for the development of land bordering property owned by plaintiffs. The developers of the property intervened.

Facts were stipulated by.all parties that plats were submitted concerning the development of Old Jefferson Subdivision, East Baton Rouge Parish, that preliminary approval was granted without a public hearing, and that no public hearings were contemplated.

The trial judge issued a writ of mandamus ordering the holding of public hearings prior to granting final approval to those plats at issue which had not already been finally approved, and ordered the removal of the words “preliminary approval granted” from those plats not finally approved. He further issued a preliminary injunction enjoining, restraining and prohibiting granting of final approval to those plats not already finally approved without holding a public hearing under the provisions of LSA-R.S. 33:113.

The defendants, Planning Commission for the City of Baton Rouge and the Parish of East Baton Rouge, the City of Baton Rouge and the Parish of East Baton Rouge have appealed, and the plaintiff, Old Jefferson Civic Association, Inc., has answered the appeal seeking frivolous appeal damages.

Appellants contend the trial judge erred in finding that LSA-R.S. 33:101 et seq. requires a public hearing prior to final approval of subdivisions under the circumstances present in the instant case. They divide their argument into the following issues: (1) are the provisions of LSA-R.S. 33:101 et seq. mandatory in a situation where the subdivision regulations are not enacted by the Planning Commission but are a part of a comprehensive subdivision ordinance enacted by the legislative body of the parish and/or municipality; (2) are the provisions of LSA-R.S. 33:101 et seq. binding upon the City of Baton Rouge and the Parish of East Baton Rouge which operates under a special plan of government; and (3) is a hearing required in all cases prior to final approval of plats in situations controlled by LSA-R.S. 33:113, or are such hearings mandated only in the event of a contemplated disapproval by the Commission?

ISSUES NOS. 1 & 2

Baton Rouge operates under a special form of government and though we indicated in Schwing v. City of Baton Rouge, 249 So.2d 304 (La.App. 1st Cir. 1971) writ refused, 259 La. 770, 252 So.2d 667 (1971), that subdivision regulations may be an inherent power, when the City and Parish Councils adopted their comprehensive ordinances to regulate subdivision development, they specifically by reference adopted LSA-R.S. 33:101 et seq. and vested in a Planning Commission approval power over proposed subdivisions.

Under Article 6, § 4 of the Louisiana Constitution of 1974 the plan of government adopted by the City of Baton Rouge, Parish of East Baton Rouge remains in existence and retains the powers, functions and duties in effect at the time of the adoption of the constitution. Under Article 14, § 3(a) of the Louisiana Constitution of 1921 Baton Rouge’s plan of government was “subject to the constitution and laws of this state with respect to the powers and functions of local government, as distinguished from structure, organization and particularly distribution and redistribution of such powers and functions among the several units of local government within the Parish . . . ” In forming the Planning Commission, the City-Parish Government created a structure of local government whose powers and functions remain subject to the constitution and laws of this state.

Therefore, based on the 1974 and 1921 Louisiana Constitutions, the Baton Rouge City Code and East Baton Rouge Parish Code, we find no error on the part of the trial court in applying LSA-R.S. 33:101 et seq. to the Planning Commission for the City of Baton Rouge and Parish of East Baton Rouge.

ISSUE NO. 3

Upon determining LSA-R.S. 33:101 et seq. to be applicable, we concur with the opinion of the trial judge. Judge Alford in his written reasons for judgment concluded:

“It is the opinion of this Court that there is a clear and specific duty on the part of the Planning Commission to afford a hearing on a plat submitted to it before acting upon that plat by granting it final approval. The Commission may have discretion to approve or disapprove the plat, but it has no discretion, according to the clear words of Art. 113 [LSA-R.S. 33:113], not to hold a hearing on the plat. Plaintiff is entitled to the issuance of a writ of mandamus commanding the Planning Commission, the Council, and the City-Parish to hold public hearings prior to granting final approval to preliminary plats of property in the Third and Fourth Filings of Old Jefferson Subdivision and the proposed Jefferson Park Development.

It is strenuously argued by appellants that no hearing is mandated under LSA-R.S. 33:113, since by inactivity final approval is awarded by operation of law.

The obvious intention of that section providing for approval by operation of law is to prohibit disapproval by the Planning Commission’s inactivity. Our interpretation of LSA-R.S. 33:113 is that upon submission of a plat, the Planning Commission must fix a date within 60 days of submission for a hearing along with notifying both the party submitting the plat and the owners of the land immediately adjoining the platted land. The Planning Commission cannot grant approval or disapproval without such a hearing and the trial court has the power to issue a writ of mandamus to compel the Commission to hold such hearings. LSA-C.C.P. art. 3863.

Appellee has answered this appeal requesting that this court hold the appeal to be frivolous and without cause along with the awarding of their attorney fees. We cannot agree with appellee that this appeal is in any way frivolous. This appeal has serious merit and was clearly not instituted solely for delay purposes; thus we reject appellee’s request for attorney fees as damages for a frivolous appeal. Jackson v. East Baton Rouge Parish School Board, 348 So.2d 739 (La.App. 1st Cir. 1977).

Finally, the intervenor, Jefferson Hills, Inc. filed in this court a brief as appellee which requests an amendment to the final judgment. The record is void as to any motion for appeal or any pleading by the intervenor answering the appeal. Necessarily then, the relief prayed for by the intervenor cannot be considered.

Therefore, for the above, and foregoing reasons the judgment of the trial court is affirmed; appellant to pay all costs of this appeal as allowed by law.

AFFIRMED.

      . Baton Rouge City Code Title 7, Chapter 1:
      “PART II. SUBDIVISION REGULATIONS.
      “Sec. 2. Authority and purpose.
      “In accordance with the provisions of La. R.S. 33:101, et seq., and particularly La. R.S. 33:112 thereof, and in order to promote the health, safety, convenience, morals, and general welfare of the community, to provide for the proper arrangement and width of streets in relation to other existing or planned streets and to the master plan, and to provide for adequate and convenient open spaces for traffic, vehicular parking, utilities, access of fire-fighting apparatus, recreation, light and air for the avoidance of congestion of population, the following regulations are adopted by the Planning Commission of the City of Baton Rouge and the Parish of East Baton Rouge.
      * * * * * *
      “Sec. 4. Definitions.
      “For the purpose of these regulations, certain terms used herein are defined as follows: ‘
      * * * * * *
      (2) Commission: The City and Parish Planning Commission of the City of Baton Rouge and the Parish of East Baton Rouge.

      “Sec. 5. Jurisdiction.
      “Every subdivision of land or site or tract development, as outlined in the definitions in section 4, paragraphs (12) and (14), within the incorporated area of the City of Baton Rouge and the unincorporated areas of the Parish of East Baton Rouge, except Industrial Areas as defined in the Plan of Government, shall be shown upon a plat and submitted to the Commission for approval or disapproval. * * *."
      By footnote, the official edition of the Baton Rouge City Code provides:
      “By companion ordinances enacted 27 April, 1955, the city and parish adopted the same subdivision regulations. These regulations are set out as Chapter 1 of Title 7 in this Code and are not included in the Compilation of Parish Ordinances. It should be stressed, however, that the subdivision regulations set out in this Code are equally applicable to both city and parish.”

      . LSA-R.S. 33:113 provides:
      “A planning commission shall approve or disapprove a plat within sixty days after the submission thereof to it; otherwise such plat shall be deemed to have been approved, and a certificate to that effect shall be issued by such commission on demand. The applicant for a commission’s approval may, however, waive this requirement and consent to an extension of such period. The ground of disapproval of any plat shall be stated upon the records of such commission. Any plat submitted to such commission shall contain the name and address of a person to whom notice of a hearing shall be sent; and no plat shall be acted on by such commission without affording a hearing thereon. Notice shall be sent to the said address by certified mail of the time and place of such hearing not less than five days before the date fixed therefor. Similar notice shall be mailed to the owners of land immediately adjoining the platted land, as their names appear upon the parish assessment rolls and, in the case of a parish planning commission, as such owners’ addresses appear in the directory of the parish; provided, however, that in parishes or municipalities with a population in excess of one hundred fifty thousand, the public hearing may be waived by the planning commission or planning authority for subdivisions creating five or less lots not involving the creation of any new streets, and provided further that the provisions in such waivers shall be clearly set forth in the official subdivision regulations. Every plat approved by a planning commission shall, by virtue of such approval, be deemed to be an amendment of or an addition to or a detail of the official plan and a part thereof. Approval of a plat shall not be deemed to constitute or effect an acceptance by the public of any street or other open space shown upon the plat. A planning commission may, from time to time, recommend to the local legislative body amendments to the zoning ordinance or map or additions thereto to conform to such commission’s recommendations for the zoning regulation of the territory comprised within approved subdivisions.
      “In the case of a parish planning commission, such requirements or restrictions shall be stated upon the plat prior to the approval and recording thereof and shall have the same force of law and be enforceable in the same manner and with the same sanctions and penalties and subject to the same power of amendment or repeal as though set out as a part of a zoning ordinance or map. Amended by Acts 1966, No. 498, § 1; Acts 1975, No. 556, § 1; Acts 1977, No. 108, § 1.”


text:
    C. M. MASLAND & SONS v. CHARLES CARTER & CO., INC.
    No. 12227.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Rehearing Denied Nov. 20, 1978.
    Writ Refused Jan. 12, 1979.
    Clarence F. Favret, Jr., New Orleans, for plaintiff-appellant C. M. Masland & Sons.
    Walton J. Barnes, Baton Rouge, for defendant-appellee Charles Carter & Co., Inc.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

This is a suit on open account brought by C. H. Masland & Sons, a Pennsylvania corporation, against Charles Carter & Company, Inc., a Louisiana corporation. To the petition, defendant filed an exception of procedural capacity, which was sustained by the trial court, and plaintiff’s suit was dismissed. From the judgment of dismissal plaintiff has appealed.

The exception is based on the allegation that Masland is a foreign corporation doing business in the state, which has not qualified to do business under R.S. 12:301. It is argued that plaintiff has no procedural capacity under R.S. 12:314A, which provides:

“No foreign corporation transacting business in this state shall be permitted to present any judicial demand before any court of this state, unless it has been authorized to transact such business, if required by, and as provided in, this Chapter. The burden of proof shall rest upon the corporation to establish that it has been so authorized, and the only legal evidence thereof shall be the certificate of the Secretary of State or a duly authenticated copy thereof.”

In support of the exception defendant offered no evidence other than a certificate from the Secretary of State that “ . a search of our records fails to reveal a corporation presently qualified by the name C. H. Masland & Sons.” Plaintiff offered an affidavit, which was properly not considered by the trial judge.

Plaintiff argues that defendant failed to make out its case, because it did not prove that plaintiff was doing business in Louisiana, and that defendant bore the burden of proving that fact. Defendant argues that plaintiff must prove it has been authorized to present a judicial demand before the courts of this state under R.S. 12:314A.

It is well settled that R.S. 12:314A does not apply to foreign corporations which are not doing business in Louisiana. Such corporations have free access to our courts. It is also settled that “ . . .an exception of want of procedural capacity is an affirmative defense casting the burden of proof upon the pleader to prove same by a preponderance of the evidence.” Hattiesburg Manufacturing Co. v. Pepe, 140 So.2d 449 (La.App. 1st Cir. 1962).

In order to prove its case, defendant must show, by a preponderance of the evidence that plaintiff is doing business in the state, and that it has not been authorized to do so. Defendant has shown only that plaintiff has not qualified to do business. The exception should have been overruled.

The judgment appealed from is therefore reversed and set aside, and the case remanded to the trial court for further proceedings in accordance with law. Defendant is granted 10 days from the date on which this judgment becomes final to file its answer. All costs of this appeal shall be paid by defendant, with all other costs to await final determination of the case on its merits.

REVERSED AND REMANDED.


text:
    DUNAWAY REALTY COMPANY, INC., Appellant, v. Agnes Scott PULLIAM, Appellee.
    No. 12229.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.

      Stacey A. Moak of Cicero & Moak, Baton Rouge, counsel for plaintiff-appellant.
    Weldon J. Hill, II, Baton Rouge, counsel for defendant-appellee Agnes Scott Pul-liam.
    Joel B. Dickinson, Baton Rouge, counsel for defendants-appellees Philip N. Pecquet and West Baton Rouge Estates, Inc.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

This action arises out of a real estate brokerage fee contract executed by plaintiff and Ivey M. Pulliam, defendant’s deceased husband, on September 4, 1973. The agreement allegedly made plaintiff the exclusive agent to sell 100 acres in West Baton Rouge Parish for a period of two years ending September 4, 1975. Plaintiff averred that under the contract it was entitled to a fee of ten percent for any sale of the property which was the result of its efforts during the term of the contract if the property were sold during the pendency of the agreement, or within 120 days of its termination. The original petition also alleged that the property was offered to Phillip N. Pecquet and, on December 31, 1975, was purchased for $75,000 by West Baton Rouge Estates, Inc. (WBRE), a Louisiana corporation of which Pecquet was alleged to be a shareholder.

The defendant filed the peremptory exceptions of no right and no cause of action alleging that defendant, Agnes Scott Pul-liam, was not a party to the contract and further that the plaintiff had failed to allege that the ultimate purchaser was ever offered the opportunity to purchase the property during the primary term of the listing agreement. The trial judge sustained the exceptions but allowed plaintiff time in which to amend its pleadings.

Plaintiff amended its petition by joining WBRE, the ultimate purchaser, and Pec-quet as defendants. These defendants were subsequently dismissed and are not before this Court. Plaintiff also claimed that Pec-quet and Agnes Scott Pulliam are shareholders in WBRE, that Pecquet advised Mrs. Pulliam not to pay the commission, and that the refusal to pay had served to enrich both defendant and Pecquet.

On the subsequent hearing on the defendant’s exceptions of no right and no cause of action, the trial judge dismissed plaintiff’s petition and plaintiff appealed.

Plaintiff is correct in asserting that there is no such exception as an exception of “no cause or no right of action.” See Bamber Contractors, Inc. v. Henderson Brothers, Inc., 345 So.2d 1212 (La.App. 1st Cir. 1977). The peremptory exceptions of no right of action and no cause of action are directed at separate and distinct issues. The exception of no right of action is designed to question the right or interest of the plaintiff in instituting the suit and raises the issue of whether a remedy afforded by law can be invoked by a particular plaintiff. The peremptory exception of no cause of action challenges whether the plaintiff’s petition sets out a grievance for which the law affords a remedy. LSA-C.C.P. art. 927(4); Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975). It is firmly established that the well-pleaded facts of the petition are accepted as true for the purpose of adjudicating the exception of no cause of action. No evidence is admissible to defeat or support the exception and all doubts are to be resolved in favor of a cause of action and giving the plaintiff his day in court. Bamber Contractors, Inc. v. Henderson Brothers, Inc., supra.

We do not reach defendant’s exception of no right of action since we find the plaintiff’s petition fails to state a cause of action against Mrs. Pulliam.

While it is well settled that an agreement listing real estate for sale with a real estate broker may be oral or written (Samuels v. Firestone Tire & Rubber Company, 342 So.2d 661 [La.1977]), it is equally well settled that in order for a real estate broker to receive a commission for the sale of property, he must prove an agreement on the part of the person against whom a commission is sought to pay the same. Bender v. International Paint Company, 237 La. 569, 111 So.2d 775 (1959); Teague v. Ashy, 278 So.2d 516 (La.App. 3rd Cir. 1973). We note that the petition before us does not allege Mrs. Pulliam to have been a party to any real estate brokerage contract.

Plaintiff alleged that the defendant is the widow of Ivey M. Pulliam, the party who allegedly signed the brokerage contract. The plaintiff, however, failed to allege that the defendant had unconditionally accepted the community and the estate of her husband, Ivey Pulliam. The Supreme Court held in Schreiber v. Beer’s Widow and Heirs, 150 La. 676, 91 So. 149 (1921):

“Articles 940, 941, 942, and 1014 of the Civil Code, declaring, substantially, that an heir, being invested with seizin or the right of possession of the estate by the mere operation of law immediately at the death of the ancestor, is considered the heir so long as he has not renounced the succession, must be read in connection with article 946, declaring that, although the succession is acquired by the heir at the moment of the death of his ancestor, the heir’s right, nevertheless, remains in suspense until he decides whether he will accept or renounce the succession. In other words, so long as the heir has not renounced the succession, he is considered the heir for the purpose of being cited and of standing in judgment in a suit against the succession, as such, if there is no administrator or other such representative of the succession; and the heir who has neither accepted nor renounced the succession is likewise considered the heir for the purpose of being cited in an action to compel him to declare whether he will accept or renounce the succession, under article 1055 of the Civil Code and articles 977 and 979 of the Code of Practice. But an heir is not deemed liable personally for the debts of the succession, merely because he has not formally renounced, until his liability is fixed by the prescription established in article 1030 of the Civil Code.” (91 So. at 155)

Therefore, Mrs. Pulliam could not be cast in judgment for the debts of her husband’s estate or the former community between them unless it was shown she had unconditionally accepted the estate of Ivey Pulliam and the former community between them. Since plaintiff has failed to aver such acceptance, its petition fails to state a cause of action against defendant for the obligation contracted by her husband.

We note that plaintiff was given ample time by the trial court to amend its petition so as to state a cause of action. Since plaintiff failed to do so, the trial court was correct in dismissing the petition. LSA-C.C.P. art. 934.

For the above and foregoing reasons, the judgment of the trial court is affirmed, plaintiff-appellant to pay all costs.

AFFIRMED.


text:
    Joseph A. REILLY, Jr., Plaintiff and Appellant, v. HOUMA BODY & FENDER, INC., Defendant and Appellee.
    No. 12230.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Rehearing Denied Nov. 20, 1978.
    Joseph A. Reilly, Jr., Houma, counsel for plaintiff and appellant.
    C. Allan Lasseigne, Houma, counsel for defendant and appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

The plaintiff is appealing the dismissal of his suit for failure to amend his petition to join a necessary party. The trial judge granted the plaintiff ten (10) days within which to join a necessary party during which time the plaintiff took no action. Defendant’s motion to dismiss plaintiff’s suit upon failure to amend the petition was subsequently granted.

The petition alleges that the defendant, Houma Body & Fender, Inc., wrongfully converted the plaintiff’s automobile which had been parked on the public streets for several days. The defendant filed a timely dilatory, mislabeled peremptory, exception of non-joinder of a necessary party in that plaintiff failed to join as a defendant Charl-ton P. Rozands, Sheriff of Terrebonne Parish, under whose authority the defendant converted the plaintiff’s auto.

At a hearing on the exception, the trial court found:

“[T]he action was taken by the Sheriff’s Office, by Charlton Rozands as Sheriff, as a principal party and that he caused the defendant in this case to pick up the vehicle and place it in storage. And as far as this court is concerned, it considers that the custodian of that was, the principal custodian was the Sheriff of Terre-bonne Parish and the Houma Body and Fender Inc. was the agent for that purpose.
“I feel that the interest of justice require^] and that the law also contemplates and identifies Sheriff Charlton Ro-zands as a principal party necessary to this action. I therefore find in favor of the exceptor and find that there is a non-joinder of the necessary party defendant. I order the plaintiff to amend and include Charlton P. Rozands, Sheriff of Terrebonne Parish, Louisiana, as a necessary party defendant.”

The appellant assigns one specification of error in that “the district court erred in finding that Charlton P. Rozands, Sheriff of Terrebonne Parish, was a necessary party under LSA-C.C.P. art. 642.”

LSA-C.C.P. art. 642 provides that:

“Necessary parties to an action are those whose interests in the subject matter are separable and would not be directly affected by the judgment if they were not before the court, but whose joinder would be necessary for a complete adjudication of the controversy.
“An adjudication of an action may be made even if all necessary parties are not joined therein, but when timely objection is made to the nonjoinder of a necessary party the court shall require his joinder if. he is subject to its jurisdiction.”

Our Supreme Court in Sanders v. Flowers, 218 La. 472, 49 So.2d 858 (1950), established the criteria by which a party should be joined as a defendant in stating that:

“The test as to whether one should be made a party defendant in a given case relates to the interest which he may have in the outcome of the suit and how he would be affected by the judgment to be rendered.”

The appellant contends that Sheriff Ro-zands would not be affected by a judgment against the defendant. We disagree.

The trial judge’s findings establish a principal-agency relationship between the Sheriff and the defendant and based on that determination the applicable general rule is that a principal is liable to third persons for acts committed by the agent while acting within the scope of his authority. LSA-C.C. art. 2320, Walker v. Fontenot, 329 So.2d 762 (La.App. 1st Cir. 1976) writ denied, 332 So.2d 217 (La.1976).

Further, the defendant acting as agent for the Sheriff would have an action against the Sheriff for any expenses incurred in the execution of its duty. LSA-C.C. art. 3022, Castille v. Folck, 338 So.2d 328 (La.App. 3rd Cir. 1976). A necessary party is not one who is directly affected by the judgment but one whose interests can be indirectly affected.

“Necessary parties are those whose interests in the subject matter of the controversy are separable, and whose absence would not prevent the granting of the proper relief to the parties actually joined; but who should be made parties, if their joinder is feasible, to avoid a multiplicity of actions and to effect a complete adjudication of the controversy.” McMahon, The Joinder of Parties in Louisiana, 19 La.L.R, 1 (1958).

We concur with the trial judge’s findings that in order to facilitate this suit the join-der of Sheriff Charlton P. Rozands is necessary.

Therefore, for the above and foregoing reasons the judgment of the trial court on the exception of non-joinder of a necessary party and the dismissal of plaintiff suit is affirmed at appellant’s costs.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Carl S. BALONEY, Appellant, v. DHHR, OFFICE OF FAMILY SERVICES, Appellee.
    No. 12231.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Mary Olive Pierson, Baton Rouge, for Carl S. Baloney.
    Frank H. Perez, Baton Rouge, for DHHR.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

This is an appeal by Carl S. Baloney from a decision of the Louisiana Commission on Governmental Ethics which affirmed his dismissal.

Appellant was employed by the Department of Health and Human Resources, Office of Family Services, as an unclassified Special Assistant to Roy Westerfield, who was then Assistant Secretary for the Office of Family Services. On July 7, 1977, appellant was dismissed for reasons set forth in a hand delivered letter signed by Westerfield. The letter of dismissal charged that appellant had used his position to alter requisitions for janitorial supplies so that they would be purchased from a company in which he was a stockholder. Counsel for appellant in a letter dated September 9, 1977, requested an appeal before the Commission.

The appointing authority has filed in this Court a peremptory exception of prescription contending that appellant’s appeal to the Commission was untimely and that the Commission erred in refusing to grant its Motion for Summary Disposition.

The pertinent provisions concerning the time limits for appealing are contained in LSA-R.S. 42:1121(E)(2) and Rule 4.22 of the Louisiana Commission on Governmental Ethics, which provide:

LSA-R.S. 42:1121
E. Appeals. — -Appeals from decisions involving disciplinary actions taken by the head of any agency or by the commission against state employees or other persons for violations of the provisions of this Part shall be in accordance with the following provisions:
(2) The Louisiana Commission on Governmental Ethics is authorized to hear and decide all appeals and the legality of all disciplinary actions taken by the head of any agency against all persons, other than classified employees, for violations of the provisions of this Part. The time limits for taking an appeal to the commission and the procedure for doing so shall be as prescribed by the rules and regulations of the commission.
Rule 4.22
No appeal shall be effective unless the request therefor in proper form is filed with the Director at his office in Baton Rouge within 30 days following the date of the action complained against or the date of appellant’s knowledge thereof.

In the instant case, the appellant’s request for appeal, contained in the letter of September 9, 1977, was not filed within 30 days of appellant’s dismissal.

The Commission recognized that appellant’s appeal was untimely, but denied the appointing authority’s motion to dismiss the appeal stating:

“. . . Subsequently, on November 9, 1977, a Motion for Summary Judgment was filed by counsel for the OFS. The thrust of the Motion was that the appellant’s first written notice requesting an appeal (and the notice the Commission construed as constituting an appeal) was not filed within the 30-day delay for appeal prescribed by Ethics Commission Rule 4.22.
“At the Commission’s November 14, 1977 meeting, the Motion was considered. Though the letter of appellant’s counsel (construed by the Commission as a request for appeal) was not filed within 30 days of appellant’s receipt of notice of dismissal, the Commission concluded the ends of justice would best be served by the conducting of an evidentiary hearing and accordingly, declined to grant the Motion.”

We believe that this was error. The timely filing of a request for appeal is jurisdictional in administrative determinations as in the ease of other appeals. See David v. State, Department of Public Safety, 261 So.2d 347 (La.App. 1st Cir. 1972). Consequently, we find that the Commission lacked jurisdiction to hear this appeal and that the appeal should have been dismissed. We will therefore sustain the appointing authority’s exception and dismiss the appeal.

For the above reasons, the appeal from the Commission’s decision is dismissed at appellant’s cost.

APPEAL DISMISSED.


author: STOULIG, Judge.

text:
    DONALD M. CLEMENT CONTRACTOR, INC. v. DEMON, INC. and Thomas D. Parrish, III.
    No. 9471.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearing Denied Nov. 20, 1978.

      Jacob L. Karno, Metairie, Robert A. Ca-plan, New Orleans, for plaintiff-appellant.
    Before GULOTTA, STOULIG and GARRISON, JJ.
   STOULIG, Judge.

Plaintiff, Donald M. Clement Contractor, Inc., filed suit on a promissory note against Demon, Inc. (Demon), and Thomas D. Parrish, III (Parrish), seeking recovery of the principal sum of $7,500 plus stipulated interest and attorney fees. The exception of no cause of action filed by Parrish individually against the plaintiff’s demand was maintained by the trial court. Plaintiff has appealed.

The note is reproduced to show the manner in which it was executed by the maker:

R.S. 10:3-401 and 10:3-403 relieve Parrish individually from any liability in this suit on a negotiable instrument. We quote:

“(1) No person is liable on an instrument unless his signature appears thereon.
“(2) A signature is made by use of any name, including any trade or assumed name, upon an instrument, or by any word or mark used m lieu of a written signature.” R.S. 10:3-401.
and
“(1) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
“(2) An authorized representative who signs his own name to an instrument
(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity * * .” R.S. 10:3-4:03

We find no ambiguity in the signature of the maker (even though the word “individually” is typed on the face of the instrument) that would render Parrish liable. R.S. 10:3-402 requires that an instrument clearly indicate a signature be made in a representative capacity if the individual signatory is to be relieved from personal liability. We hold the handwritten designation “President” on the “Individually” line sets forth Parrish’s act as one executed by an official of the corporation.

In addition to alleging the solidary liability of Demon, Inc., and Parrish on the basis of the note, plaintiff made other allegations that it insists entitles it to pierce the corporate veil and reach its president Parrish individually. Appellant correctly points out that for the purpose of adjudicating an exception of no cause of action, the court must accept as true all well-pleaded allegations of fact. LSA-C.C.P. art. 931; Pence v. Ketchum, 326 So.2d 831 (La.1976).

In the original petition plaintiff alleged that (1) “* * * the individual defendant herein has identical business objects and purposes * * * and * * * [Parrish] has used the corporate form primarily for the purpose of promoting his own individual business interests” and (2) petitioner furnished the loan on the belief “* * * both defendants were to be liable * * * in solido * * *."

In the supplemental petition, plaintiff avers, inter alia, Parrish is the sole officer of Demon, the majority stockholder, and its alter ego. It further asserts Parrish has never capitalized Demon and has used the corporation for the conducting of the individual business interest of Parrish.

The conclusion plaintiff would have us draw from these allegations is that Parrish perpetrated a fraud in obtaining these funds for which the note was given. LSA-C.C. art. 1847 specifies that fraud, as applied to contracts, is the cause of an error relating to a material part of the agreement wherein the perpetrator has procured the consent of the other contracting party by artifice. Unless the word “Individually” was added to the note after it was signed by Parrish (and we do not think this is the case), it is apparent that the payee contemplated having Parrish sign individually as well as in his corporate capacity as Demon’s president. The fact that Parrish inserted the word “President” on the “Individually” line indicates he did not accede to assuming individual liability when the loan was signed.

The note on its face evidences a corporate debt. Plaintiff has alleged:

“* * * [I]t furnished the loan herein sued on under the belief that both defendants were to be liable thereon in solido and that such belief was reasonable under the circumstances and resulting from the representations made by the defendant, Thomas D. Parrish, III.”

Had plaintiff intended to hold Parrish soli-darily liable with Demon, it was necessary for its agent to have Parrish sign in his individual capacity as a co-maker or an endorser. If there was any error in executing the note upon which this suit is based or the conclusion of legal liability drawn from its execution, it is an error of law, LSA-C.C. art. 1822. Under the circumstances, we think the error here is insufficient to reform the note to extend liability to Parrish individually. LSA-C.C. art. 1823 points out that not every error will invalidate a contract, but only those relating to the principal cause for entering into the

contract — motive, persons or subject matter. As the Supreme Court pointed out in Ardoin v. Central Louisiana Electric Company, Inc., 318 So.2d 5 (1975), a contract cannot be reformed when the intent of the parties is evident and lawful. LSA-C.C. art. 1963.

Plaintiff’s contention that we should apply the alter ego doctrine and hold Parrish personally liable is without merit. The obligation upon which this suit is based is a promissory note of the defendant corporation. Plaintiff has failed to allege fraud in its confection. Knowing that it was contracting with the corporation, if it intended to bind Parrish personally on the corporate obligation, the plaintiff should have insisted on his individual endorsement at the time of the execution of the note. Failure to do so is in essence a waiver of the requirement of personal endorsement. Plaintiff cannot now be heard to urge a piercing of the corporate veil to overcome this omission and achieve the result it seeks. Absent fraud, the relationship between the defendants is of no consequence, as it bears upon the issue of liability of the parties on the instrument. Cases cited by appellant in support of its contention are not apposite of the situation in this matter.

We therefore conclude that the Commercial Laws (R.S. 10:1-101 et seq.) preclude plaintiff’s action against Parrish individually and the pleadings and attachment do not warrant our holding that plaintiff has alleged fraud that would permit reform of the note or expansion of its provisions.

We are aware of the fact that the judgment of the trial court maintaining the exception of no cause of action granted plaintiff “30 days in which to amend his original petition” but did not order a dismissal of the suit against Parrish in the event of its failure to do so. Plaintiff perfected a devolutive appeal within the 30-day period, thereby indicating its intention not to amend or supplement its petition. Rather than remand this matter for the purpose of having the trial court include the dismissal penalty, in the interest of judicial economy we have elected to exercise the authority vested in this court by LSA-C. C.P. art. 2164 and have rendered judgment based upon the record on appeal.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.


author: BOUTALL, Judge. SCHOTT, Judge,

text:
    Richard E. JONES, Jr., Individually and on behalf of Daniel Bryan Jones and Ruth Elton Bovie, Individually and on behalf of Ellyson Marie Bovie v. GULF INSURANCE COMPANY et al.
    No. 9685.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Rehearing Denied Nov. 20, 1978.
    Charles R. Jones, for Richard E. Jones, Jr., and Ruth Elton Bovie, plaintiffs-appellants.
    Leonard A. Young, New Orleans, for Shirley Friloux, St. Charles Parish School Board and Gulf Ins. Co., defendants-appel-lees.
    Herbert B. Bowers, III, New Orleans, for Lumbermens Mutual Casualty Co. and Ora K. Mundell, defendants-appellees.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOUTALL, SCHOTT, BEER and GARRISON, JJ.
   BOUTALL, Judge.

This matter is before us on our own motion to show cause why the appeal should not be dismissed because of untimely filing of the devolutive appeal bond.

On October 28th and November 15th, 1977, the trial court rendered judgments against the plaintiffs dismissing the suit. On November 23, 1977, plaintiffs filed an appeal from these judgments and on November 28, 1977, an order was entered granting the devolutive appeal and setting the bond at $500.00. No bond was filed until January 26, 1978. Noting lack of timely compliance with Code of Civil Procedure Article 2087, we issued our rule.

Under Article 2087, the plaintiffs had 60 days, from the expiration of the delay for a motion for a new trial, to appeal and furnish security. In this case, the deadlines were January 8 and 24, 1978. The appeal order was timely taken, but the bond was not posted within the 60 day period. Nor were the estimated costs paid within the period, which would have served as substitute security. Bacmonila Garden Apartment, Inc. v. Williams, 355 So.2d 288 (1978). (Costs were paid in this case on February 13, 1978.)

Under these circumstances, we dismiss the appeal. The decision of this court in Cotaya v. Louisiana Health Service & Indemnity Company (La.App. 4th Cir. 1978) controls this case. In that case, it was determined that Act 176 of 1977 which eliminated the security requirement for a devolutive appeal only applied to those appeals in which the order of appeal was granted on or after January 1, 1978. Since the appeal order was taken in this case on November 23, 1977, the provisions of Act 176 are not applicable.

While it is clear that a devolutive appeal bond is dispensed with in appeals in which the order of appeal is granted on or after January 1, 1978, it is equally clear that the Act does not apply when the order of appeal is granted prior to January 1, 1978. The Act specifically provides:

“The effective date of this Act is January 1, 1978; the provisions hereof shall apply to all appeals in which the order of appeal is granted on or after the effective date hereof.”

Under the plain wording of the Act, no other interpretation is possible. We therefore dismiss the appeal.

SCHOTT, J., concurs with reasons.

REDMANN, LEMMON and GARRISON, JJ., dissenting.

SCHOTT, Judge,

concurring.

I agree with and have initialed the majority opinion in this case. I offer some additional reasons for my position.

A judgment from which no appeal is taken assumes the quality of res judicata,' LSA-C.C. Art. 3556(31). The legislature prescribes the manner in which an appeal is taken. When the judgments were signed in appellee’s favor on October 28 and November 15, 1977, it could be anticipated that they would become final if no appeal was taken in the manner prescribed by the legislature at that time. Act 176 of 1977 by its own terms had no application to these judgments because the act would not become effective until January 1, 1978, and would apply to those appeals taken after the effective date.

In discussing the obligations placed on an appellant to perfect an appeal, courts seem preoccupied with the right of an appellant to taken an appeal and have repeatedly spoken of and applied liberal interpretation in order to save questioned appeals. Such an approach might lead to a strained interpretation of Act 176 of 1977 in order to save the instant appeal. However, the problem with such an approach in this case is in the failure to consider the corresponding right of the appellee to consider its judgment final on some clear and determinable date. When the legislature changed the rules for appeals which would be taken after January 1, 1978, there was not the slightest hint in the legislation that appellee’s residual rights from the old law were taken away. Appellee could rest assured that the judgments would become final unless appellants posted bond before the deadline. It may be that this residual right from the old law was subject to appellants’ obtaining another order of appeal but appellants having failed to take advantage of the new act’s provisions cannot be said to have somehow, by default, deprived appellee of its residual rights from the old law.

REDMANN, Judge, with whom LEM-MON and GARRISON, Judges, join, dissenting.

Guided by La.Const. art. 1 § 22’s requirement that courts be open and by the cardinal jurisprudential principle that appeals are favored and “should be maintained unless a legal ground for dismissal is clearly shown”, Favrot v. Favrot, 1968, 252 La. 192, 210 So.2d 316, 317, we should hold the filing of a bond unnecessary after January 1,1978 to the survival of a devolutive appeal taken before but takable after that date.

We reason that no law existed after January 1, 1978, requiring the posting after that date of a bond for a devolutive appeal or, more important, making “jurisdiction” of the appellate court over a devolutive appeal depend upon the posting of a bond within a specified period. La. Acts 1977 Nos. 174 through 176, § 3, effective January 1, 1978, repealed those former provisions of La.C.C.P. 2087, 2088 and 2124 by amending and reenacting those articles without those provisions. Although the 1977 Acts recite that their provisions “shall apply” to appeals whose orders of appeal are signed on or after January 1, and one might infer that those provisions do not apply to earlier-ordered appeals, nevertheless the former texts of the articles are not continued in force by any provision of the 1977 Acts, and those Acts do not declare that their own provisions “shall not apply” to then-pending appeals. There were not two different articles 2087, two articles 2088 and two articles 2124 in force at the same time in January (and February) 1978. To interpret the 1977 Acts to provide two sets of articles does violence to the Titles of those Acts and ignores the title-body clause of La.Const. art. 3 § 15(A). We conclude that there was no law in force after January 1, 1978, other than the amended articles, which will not permit dismissing this appeal.

On November 23, 1977, plaintiffs by motion granted November 28, 1977 appealed from judgments rendered at trial on October 27 and signed October 28 and November 15. Because plaintiffs did not apply for a new trial, C.C.P. 2087 (prior to its 1977 amendment effective January 1, 1978) allowed them 60 days to appeal and post bond, starting from the expiration of the delay for applying for a new trial (seven days exclusive of holidays, C.C.P.1974). Thus January 8 and 24, 1978 (60 days after November 9 and 25, respectively) would have been the last days to post bond. No bond was posted until January 26. Nor were estimated costs paid within the time for appeal, which would have served as substitute security, Bacmonila Garden Apt. v. Williams, La.App. 4 Cir. 1978, 355 So.2d 288; Laque v. St. Charles Par., La.App. 4 Cir. 1978, 363 So.2d 1240. Notice of estimated costs was not here given until January 26, 1978, and the estimate was paid within 20 days.

Meanwhile, on January 1, 1978 Acts 1977 Nos. 174 through 176 became effective, eliminating the requirement of filing a bond in devolutive appeals for the appellate court’s “jurisdiction” to attach.

However, those Acts § 4, in providing an effective date of January 1, 1978 rather than the usual 60th day after adjournment, La.Const. art. 3, § 19, added “the provisions hereof shall apply to all appeals in which the order of appeal is granted on or after the effective date hereof.” That language has been interpreted as if it read “shall apply only” to later appeals, or “shall not apply to appeals in which the order of appeal was granted before the effective date hereof”, in Cotaya v. Louisiana Health Serv., La.App. 4 Cir. 1978, -So.2d -, and Tadlock v. W. H. Hodges Co., La.App. 3 Cir. 1978, 357 So.2d 1268. Cotaya and Tad-lock dismissed appeals for lack of a timely bond.

Although Cotaya and Tadlock did not expressly do so, it may be argued that neither the amending provision nor the repealing provision of the pertinent Acts “applies” to this appeal because the effective date provision adds that “the provisions [of this Act] shall apply [interpreted: shall apply only] to all appeals in which the order” is dated after January 1, 1978. The argument would be that the earlier versions of the C.C.P. articles coexist with the new versions and remain in force past January 1, 1978. To confer appellate “jurisdiction” an appellant whose order of appeal was earlier granted but who had not yet filed bond would be obliged, within the part of his period for appeal during January and February 1978, either to (1) file bond under the first C.C.P. 2088 or (2) have the old order of appeal revoked and a new one signed so as to be governed by the second C.C.P. 2088. This procedure seems pointless. The refusing of “jurisdiction” over one case decided in late 1977 while granting it over another case decided the same day, on the sole basis that one appellant obtained an order of appeal in 1977 and the other in 1978 would be whimsy. No rational justification for a classification on such a basis comes to mind. We decline to interpret the Acts in question to deny appeal rights to appellants classified on such a basis because to do so is to deny equal protection of the law, U.S. Const. Amend. 14, and to violate La.Const. art. 1 § 22’s requirement that all courts be open to provide remedy by due process and justice administered without partiality.

We also decline to so interpret the 1977 Acts because of the title-body clause, La. Const, art. 3 § 15(A): “Every bill shall contain a brief title indicative of its object.”

The titles of La.Acts 1977 Nos. 174-176 (and also 177-180) all read, in form, like that of Act 176:

AN ACT
To amend and reenact Article 2124 of the Louisiana Code of Civil Procedure, relative to the security to be furnished for an appeal and to provide for the effective date thereof.

The title gives no indication that it would add a second Article 2124 while requiring the old Article 2124 to survive through the first 59 days of 1978: it proposes only “to amend and reenact” the one and only Article 2124 already in existence, and to provide for the effective date “thereof” — the effective date of the amended and reenacted Article 2124.

Although the title-body clause should be liberally construed, Louisiana Independent Auto D. Assn. v. State, La.1975, 295 So.2d 796, it does strike with invalidity “extraordinary subject matter” in the body of an Act unless indicated by the title, Terrebonne Par. P. J. v. Board of Com’rs, La. 1976, 306 So.2d 707.

Had the Legislature expressly provided that through February 1978 there would be in force two versions of C.C.P. 2124 (and 2087 and 2088), one applicable to appeals whose orders were signed before and the other to appeals whose orders were signed after January 1,1978, that would have been “extraordinary subject matter” within Terrebonne for an Act with the title “to amend and reenact C.C.P. 2124 and to provide the effective date thereof.” The title to Act 176 does not indicate that extraordinary purpose: yet that extraordinary purpose is read into the Act by reading “shall apply” as meaning “shall only apply” to appeals with orders signed January 1 or later. Accordingly, if Cotaya were correct in reading “shall only apply”, then the “shall apply” clause would be invalid because violative of the title-body clause.

We therefore reject the argument that for 59 days there were two effective versions of the same procedural articles. We conclude that on January 1, 1978 both the amending and the repealing provisions of the 1977 Acts were completely effective, and the prior forms of C.C.P. 2087, 2088 and 2124 no longer were in force.

Yet it is the prior form of C.C.P. 2088 which alone theoretically requires dismissal of an appeal for untimeliness of bond. The prior wording was that “jurisdiction of the trial court ... is divested, and that of the appellate court attaches, on the timely filing of the appeal bond . . . .” Because of that wording the Supreme Court concluded that the passage of the time for appealing without filing the bond deprived the appellate court of jurisdiction over the case; Orrell v. Southern Farm Bur. Cas. Ins. Co., 1966, 248 La. 576, 180 So.2d 710; Wright v. Mark C. Smith & Sons, La.1973, 283 So.2d 85; Guilliot v. City of Kenner, La.1976, 326 So.2d 359. Thus it was the pre-1977 text of C.C.P. 2088 that required dismissal of an appeal once the appeal time passed without bond being filed. But that text of C.C.P. 2088 was no longer in force in January 1978 when this case’s time for appeal expired (without bond having been filed). There is, accordingly, no longer any authority upon which this appeal can be dismissed, even if the current version of C.C.P. 2088 does not apply.

We would hold that the 1977 Acts, which by their terms “shall apply” to certain appeals, also apply, and must apply, to all other appeals whose time for appealing extended into 1978: the Acts apply to all appeals in which the order of appeal was or could have been granted on or after January 1, 1978.

Thus no bond need be filed after January 1, 1978 for the appellate court’s “jurisdiction” to attach. Our jurisdiction in this case therefore attached on January 1, 1978, when bond first became unnecessary.

Cotaya v. Louisiana Health Serv., supra, (and Malanders v. Avondale Shipyards, Inc., La.App. 4 Cir. 1978, 361 So.2d 479, insofar as it accords with Cotaya) should be overruled, and our rule to dismiss should be recalled.

      . Art. 2087 (as amended, Acts 1976 No. 201). [A]n appeal which does not suspend the effect or execution of an appealable order or judgment may be taken, and the security therefore furnished, within sixty days after: (1) The expiration of the delay for applying a new trial. . ..
      Art. 2088 (as amended, Acts 1968 No. 128). The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the timely filing of the appeal bond, or if no bond is required, on the granting of the order of appeal ....
      Art. 2124. The security to be furnished for a devolutive appeal shall be fixed by the trial court at an amount sufficient to secure the payment of costs. . . .

      . Art. 2087 (as amended, Acts 1977 No. 174). [A]n appeal which does not suspend the effect or execution of an appealable order or judgment may be taken within sixty days of: (1) The expiration of the delay for applying for a new trial
      Art. 2088 (as amended, Acts 1977 No. 175). The jurisdiction of the trial court ... is divested, and that of the appellate court attaches, ... on the granting of the order of appeal, in the case of a devolutive appeal. . . .
      Art. 2124 (as amended, Acts 1977 No. 176). No security is required for a devolutive appeal. . . .

        . Bacmonila had pointed out that the requirement of a devolutive appeal bond — a bond for costs, C.C.P. 2124 — became superfluous after Acts 1976 No. 708 amended C.C.P. 2126 to oblige the appellant to pay the clerk’s estimate of appeal costs before the clerk prepared the record for the appeal. (Under prior law, the clerk was protected by the bond but had no authority to require a deposit for appeal costs; Lewis v. Collins, La.App. 4 Cir. 1976, 329 So.2d 485.)

      . One might suppose a justification of such a law, e. g., a companion measure requiring prepayment of estimated costs applicable only when orders of appeal were signed after 1977. If that were the case, to dispense with the requirement of bond for costs, C.C.P. 2124, only in those cases where costs must be prepaid would be reasonable. No such companion measure exists here.

      . Whitener v. Clark, La.App. 2 Cir. 1978, 356 So.2d 1094, writ refused 358 So.2d 638 and 641, reaches the same result as to the applicability to a pre-1978 appeal of C.C.P. 2166 as amended by Acts 1977 No. 179 despite that Act’s recital that its provisions “shall apply” to appeals granted after January 1, 1978. Whitener’s result was partially based on a Supreme Court Rule amendment impliedly adopting the view espoused here.

      . Devall v. Devall, La.App. 3 Cir. 1978, 357 So.2d 899, writ granted 358 So.2d 949 [presumably because of express conflict with Bacmonila, supra], and Landry v. Dent, La.App. 1 Cir. 1978, 358 So.2d 673, writ refused 359 So.2d 1293, expressly refused to apply the 1977 Acts retroactively to obviate the need for a bond the last day to supply which fell before January 1, 1978. Under the Supreme Court interpretations of C.C.P. 2088’s earlier text, such as Guilliot, supra, failure to file bond timely not only allowed the judgment to become definitive but deprived the appellate court of “jurisdiction” and required dismissal of the appeal. Accordingly, because “jurisdiction” never attached in Devall and Landry within the then possible appeal periods, a statute effective after those periods — after the judgments became definitive — could not revive those appeals and make undefinitive those definitive judgments. Acts 1977 Nos. 174 — 176 were never in force during the period of those judgments’ appealability.
      In our case, to the contrary, although the order of appeal was signed prior to January 1, 1978, the period during which appeal could have been taken extended past January 1, 1978 so that Acts 174-176 of 1977 were unquestionably effective during part of this appeal’s viability under prior law. An order of appeal could have been granted in January 1978 in this case, had appellant but waited until then to move for an appeal. That was not the case in Devall or Landry.


author: SCHOTT, Judge.

text:
    Anthony WOODS v. CUMIS INSURANCE SOCIETY INC. and Cornelius Edinburgh.
    No. 9467.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1978.
    Law Offices of James G. Kambur, Preston G. Sutherland, New Orleans, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, Henry Leon Sarpy, New Orleans, for defendants-appellees.

      Before SAMUEL, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

This case arose out of a collision between automobiles owned and operated by plaintiff and defendant Edinburgh while both were proceeding in the same direction along North Galvez Street in New Orleans. It was tried to a jury on the following special interrogatories which the jury answered as follows:

“1. Do you find that the plaintiff, Mr. Woods, was negligent? Yes x_ No_
2. If your answer to No. 1 is ‘yes’ was Mr. Wood’s negligence the proximate cause of the accident? Yes x_ No _
3. If your answer to Nos. 1 and 2 is ‘yes’ you need not answer the following questions.
4. Do you find that Mr. Edinbergh was negligent? Yes x_ No _
5. If your answer to No. 4 is ‘yes’ was Mr. Edinbergh’s negligence the proximate cause of the accident? Yes x_ No _
6. If your answers to Nos. 4 and 5 are ‘yes’ how much do you award to Mr. Woods:
For pain and suffering: $__0_
For property damage: ¡6 221.00
For loss of wages: S 0
For medical expenses: $ 0

The trial judge thereupon signed a judgment dismissing plaintiff’s suit.

In this appeal plaintiff seeks a new trial based upon the theory that the trial judge failed to apply the last paragraph of LSA-C.C.P. Art. 1812, which provides as follows:

“When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, the court shall not direct the entry of judgment but may return the jury for further consideration of its answers or may order a new trial.”

We agree with plaintiff that the quoted paragraph was applicable. The answer to the sixth interrogatory was inconsistent with the answers to the first and second. Thus, the trial judge was prohibited from directing entry of judgment in defendant’s favor but was given the option of either returning the jury for further consideration of its answers or ordering a new trial. The question now is whether to remand the case for a new trial as plaintiff urges or to decide the case on the record before us.

In Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), the Supreme Court reversed a Court of Appeal judgment, remanding the case for a new jury trial because of reversible error in the jury instructions of the trial court. Agreeing that the instructions were erroneous, the Supreme Court remanded the case to the Court of Appeal for a decision on the record, reasoning that this followed from the constitutional grant of jurisdiction to Courts of Appeal to review facts as well as law in civil cases. The court also based its decision on consideration of judicial economy. The same result was reached in Couto v. Oms, 323 So.2d 128 (La.1975). For us to remand the instant case for a new trial would be inconsistent with the cited cases.

As a practical matter, had the trial court returned the jury for further consideration and had the jury then retracted their answer to the sixth interrogatory and returned a general verdict for the defendant our function as an appellate court would be the same as it is now, i. e., to review the facts.

The entire trial consisted of the testimony of plaintiff, Edinburgh, and a police officer. Plaintiff maintained that he was proceeding in the right lane when defendant came over from the left lane and sideswiped him. Defendant testified that he was at all times in the left lane when plaintiff’s left rear hooked on to defendant’s right front bumper. The only way for both drivers to have been negligent was for them to come together between lanes which neither maintained. It seems clear that the accident happened in one lane or the other and the driver who encroached on the other was solely negligent.

The police officer testified that he arrived on the scene 30 minutes after the accident (not the incredible three hours later which defendant said) and found the two vehicles in the right lane with Edinburgh’s on an angle indicating that it had come from the left lane, and plaintiffs wholly within the right lane with skid marks trailing behind and also within the right lane.

Edinburgh testified that he had moved his vehicle from the left lane and parked at the curb on the right side ahead of plaintiff’s car before the officer arrived, and that plaintiff also moved his car before the policeman arrived. However, plaintiff stated that his automobile was not moved before the officer arrived.

Thus, the record presents a clear and direct conflict between the versions presented by the parties under circumstances where one or the other must be believed and the other rejected. The jury reached an impossible conclusion and ignored the testimony of the one disinterested witness, the police officer, who placed the collision in the right lane thereby totally rejecting defendant’s version and accepting plaintiff’s. Under these circumstances, we have concluded that the judgment must be reversed. A similar approach was taken by this court in United Service Auto Ass’n v. Travelers Ins. Co., 255 So.2d 418 (La.App. 4th Cir. 1971).

Plaintiff suffered cervical and lumbar strain evidenced by muscle spasms which continued from April, when the accident occurred, until July. He was finally discharged by his physician in September after treatment which consisted of injections and moist heat application. He incurred a medical bill of $565. We have concluded that he is entitled to an award of $3,000 for general damages and the $221 for his automobile damage.

Accordingly, the judgment appealed from is reversed and there is judgment in favor of plaintiff, Anthony Woods, and against defendant, Cumis Insurance Society, Inc. and Cornelius Edinburgh, jointly and in sol-ido, in the sum of $3,786 with interest from the date of judicial demand until paid, and for all costs including the costs of this appeal.

REVERSED AND RENDERED.