text:
    STATE of Louisiana v. George L. JONES.
    No. 58483.
    Supreme Court of Louisiana.
    Dec. 22, 1976.
    Bert M. Cass, Jr., Deutsch, Kerrigan & Stiles, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Alan P. Dussouy, Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

George L. Jones was indicted by the grand jury for the Parish of Orleans with first degree murder in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty of second degree murder and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on two assignments of error for reversal of his conviction and sentence. We have carefully reviewed these assignments of error and find them to be without merit.

However, we note, ex proprio motu, under the authority of La.Code Crim.P. art. 920(2), that the sentence imposed is illegal. Minute entry of August 8, 1975 shows:

Defense filed Motion for New Trial. Motion denied. Defendant sentenced to serve the rest of his natural life in the custody of the Director of the Department of Corrections without benefit of parole, probation, or suspension of sentence. Defense gave oral notice of appeal.

Defendant was found guilty of second degree murder. The penalty for second degree murder (La.R.S. 14:30.1) provides that whoever commits the crime of second degree murder shall be imprisoned at hard labor for life and shall not be eligible for parole, probation or suspension of sentence for a period of twenty years. The sentence imposed herein renders defendant ineligible for parole, probation or suspension of sentence for the rest of his natural life rather than for twenty years, as provided in the statute. Secondly, La.Code Crim.P. art 873 provides that, if a motion for a new trial is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. However, if defendant expressly waives the delay provided for in the article, sentence may be imposed immediately. In the instant case, according to the minute entry, defendant’s motion for a new trial was overruled and sentence was imposed on the same day; there is no showing that defendant expressly waived the required statutory delay. Additionally, the minutes of the trial proceeding fail to show that the trial judge, in imposing sentence, gave defendant credit toward service of his sentence for time spent in actual custody, if any, prior to the imposition of sentence. Such an allowance of credit is mandatory. La.Code Crim.P. art. 880.

Accordingly, the conviction is affirmed. However, the sentence imposed is vacated and set aside and the matter is remanded to the district court for resentencing in accordance with law.


source: Caselaw Access Project

author: SUMMERS, J., DENNIS, J.,

license: Public Domain

text:
    Carl SMITH and Patricia Smith v. Stanford B. WHATLEY, d/b/a Fantasia No. 2.
    No. 58908.
    Supreme Court of Louisiana.
    Jan. 7, 1977.
   In re: Stanford B. Whatley d/b/a Fantasia No. 2, applying for certiorari, or writ of review, to the Court of Appeal, 338 So.2d 153, Second Circuit, Parish of Caddo.

Application denied; no error of law in the judgment of the court of appeal.

SUMMERS, J.,

is of the opinion the writ should be granted. See Act 339 of 1976.

DENNIS, J.,

concurs in the result reached by the Court of Appeal.


author: DIXON, J.,

text:
    STATE of Louisiana v. Ira Lee LOYD.
    No. 59118.
    Supreme Court of Louisiana.
    Jan. 13, 1977.
   In re: Ira Lee Loyd, applying for writ of certiorari.

Writ denied. Petitioner is not entitled to have the trial stayed, inasmuch as there is a grand jury indictment.

DIXON, J.,

concurs in the denial; even if the trial judge had found for the defendant on the preliminary hearing, holding that there was no probable cause, the remedy is release of the defendant, not prohibiting the trial, nor quashing the grand jury indictment.


text:
    Michael DAVIS v. Robert MARIE and State Farm Fire and Casualty Co.
    No. 58997.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Michael Davis applying for certio-rari, or writ of review, to the Court of Appeal, 339 So.2d 370, First Circuit, Parish of Terrebonne.

Writ denied. On facts found by the courts below, the result is correct.

DENNIS, J., is of the opinion the writ should be granted.


text:
    Frank B. WOOD v. BOARD OF COMMISSIONERS FOR the PONTCHARTRAIN LEVEE DISTRICT.
    No. 58988.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: Frank B. Wood applying for cer-tiorari, or writ of review, to the Court of Appeal, 338 So.2d 744, Fourth Circuit, Parish of St. James.

Writ denied. Court of Appeal judgment is correct.

DENNIS, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Louis JOHNSON.
    No. 58952.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: State of Louisiana, applying for writs of certiorari, mandamus and prohibition.

Writ denied. No abuse of discretion.


author: SUMMERS, J.,

text:
    STATE of Louisiana ex rel. James E. WILLIAMS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58969.
    Supreme Court of Louisiana.
    Jan. 14, 1977.
   In re: James E. Williams applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Granted. An evidentiary hearing is ordered on the issue of the impermissibly suggestive influence upon eye-witnesses’ identification of relator.

SUMMERS, J.,

dissents from this grant. I do not agree that the issue of an undue suggestive identification can be raised at this time, applicant having waived his right to appeal.


author: ELLIS, Judge.

text:
    Anthony VOISIN et al. v. Whitney LUKE et al.
    No. 10978.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Rehearing Denied Dec. 20, 1976.
    Writ Refused Feb. 18, 1977.

      Gerald Lofaso, and Edward J. Gaidry, Houma, for plaintiffs and appellants.
    Timothy Ellender, Houma, and Daniel C. Wiemann, New Orleans, for defendants and appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

This is a petitory action, brought by the heirs and assigns of Lawrence Voisin against the heirs of Sidney Luke. After trial on the merits, judgment was rendered in favor of defendants, and all plaintiffs have appealed except for Ezella Trosclair Luke, a claimant to an undivided Viw of the disputed property. As to her, the judgment is final.

The property in dispute is a strip of land one arpent in width, lying in Section 37, Township 20 South, Range 17 East, in Ter-rebonne Parish, Louisiana. The strip of land lies on the south line of Section 37, beginning six arpents west of Bayou Grand Caillou, and running back between parallel lines to the west boundary of the said section, which is commonly referred to as the “40 arpent line”.

Defendants herein were found to be in possession of that part of the disputed property by judgment in a possessory action between these parties. See Voisin v. Luke, 234 So.2d 862 (La.App. 1st Cir. 1970).

The burden of proof which plaintiffs must bear is set out in Article 3653 of the Code of Civil Procedure:

“To obtain a judgment recognizing his ownership of the immovable property or real right, the plaintiff in a petitory action shall:
(1) Make out his title thereto, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.”

When the defendant is in possession of the disputed property, the foregoing article, and Article 44 of the Code of Practice, on which it is based, have been interpreted to mean that the plaintiff must rely on the strength of his own title and not the weakness of his adversary's, that he must show valid record title, good against the world, and that the title of defendant does not come into question until the plaintiff has proved an apparently valid title in himself. Smith v. Chappell, 177 La. 311, 148 So. 242 (1933); Thompson v. Frazier, 184 So.2d 283 (La.App. 1st Cir. 1966); Pure Oil Company v. Skinner, 294 So.2d 797 (La.1974).

The common ancestor in title of both plaintiffs and defendants is Celestine Du-Bois, who was the owner of Lot 1 of a subdivision of Live Oak Plantation, which constituted the southerly six arpents of Section 37, running from Bayou Grand Caillou back to the 40 arpent line. On January 7, 1898, Mrs. DuBois sold the rear portion of Lot 1, being six arpents in width, beginning six arpents west of the Bayou and running back to the 40 arpent line, to Mrs. Anna Pouseret, wife of John B. Rider. That parcel descended from Mrs. Rider via a direct chain of title to Charles W. Buckley, who acquired by counter-letter of May 13, 1909. On October 14, 1933, Mr. Buckley transferred the property to Esther Kennedy. On the same day, Miss Kennedy transferred the property to “Charles W. Buckley, Robert W. Buckley and Warren Buckley, Trustees”.

On November 19, 1934, “Charles W. Buckley, Robert W. Buckley and Warren Buckley, ... as Trustees of the Charles W. Buckley Trust, and for and on behalf of said Charles W. Buckley Trust”, sold the said tract to Lawrence Voisin, from-whom plaintiffs inherited the said property. The deed contains the following language:

The trial judge found that, under the law, as it was in 1934, there could be no transfer of property to a trust in Louisiana, and that under the deed from Esther Kennedy, title vested in Charles W. Buckley, Robert W. Buckley and Warren Buckley, individually, rather than as trustees. He further held that, since the same three parties acted on behalf of the Charles W. Buckley Trust, rather than as individuals, in the sale to Lawrence Voisin, they did not convey the interests which they held personally under the deed from Esther Kennedy. He found this to create a gap in plaintiffs’ title, and that plaintiffs had therefore not met the burden imposed by Article 3653 of the Code of Civil Procedure, supra.

Plaintiffs timely applied for a new trial for the purpose of reargument only. On December 6, 1974, the date fixed for hearing on that motion, plaintiffs filed a “Supplemental and Amended Motion and Rule for New Trial”, alleging the discovery of “new evidence and important documents touching upon the creation and existence of the Charles W. Buckley Trust.”

The trial judge granted a partial new trial for the purpose of admitting the documents into evidence, but held that they made no difference in the outcome of the case, and rendered a final judgment recognizing defendants as owners of the disputed property. Although defendants now complain that the trial judge should not have granted the new trial, they cannot be heard to do so, since they have neither appealed nor answered the plaintiffs’ appeal.

The three documents admitted, which were dated October 20 and 21, 1937, and all of which purported to convey the subject property, were: A quitclaim deed from Esther Kennedy to Charles W. Buckley; a transfer from Charles W. Buckley, Robert W. Buckley and Warren Buckley, Trustees of the Charles W. Buckley Trust, to Charles W. Buckley; and a transfer from Charles W. Buckley to Warren Buckley of an undivided one-fourth interest.

In the transfer from the Trustees to Charles W. Buckley, we find the following language:

“This deed is made for the purpose of revesting in Charles W. Buckley the title which he attempted to vest in the vendors as Trustees for the ‘Charles W. Buckley Trust’ to the above described lands, property and property rights situate in the State of Louisiana by the making of two deeds to one Esther Kennedy, acknowledged October 14, 1933, and recorded in Terrebonne Parish, Louisiana, in Conveyance Book 101 folios 471 and 474, and by causing the said Esther Kennedy to make a deed to said Charles W. Buckley, Warren Buckley and Robert W. Buckley, as Trustees, acknowledged on or about October 14, 1933 and registered in Conveyance Book 101, folio 477 of said Terrebonne Parish, Louisiana.
“Now, the parties have been informed that such a trust and the holding of title by such Trustees is not valid or effective in Louisiana or as affecting Louisiana property and property rights; and the present deed is made and delivered so as to correct the situation, and to take out of said Trust and said Trustees, and to revest in their true and legal owner, Charles W. Buckley, the hereinabove described lands, property and property rights.”

Article 4, § 16 of the Constitution of 1921 says, in part:

“No law shall be passed authorizing the creation of substitutions, fidei commissas or trust estates; except that the legislature may authorize the creation of trust estates for a period not exceeding ten years from the settlor’s death as to a beneficiary which is not a natural person; ten years from the settlor’s death as to a beneficiary who is a natural person or until the death of the beneficiary whichever is the longer period; . . . ”

The only law adopted by the legislature relative to trusts was Act 107 of 1920 which, consistent with the above constitutional provision, provided for donations in trust which did not affect the law in regard to the disposable portion, except that the legitimate portion of a forced heir could be administered in trust. Act 107 of 1920 was repealed by Act 7 of the Third Extraordinary Session of 1935, and there was no law permitting trusts until 1938. There is nothing in the record to indicate whether or not the Charles W. Buckley Trust complied with the above provisions of the constitution or of Act 107 of 1920, either in its creation, terms or duration.

It is clear that, in 1933 and 1934, it was possible for a trust to exist legally in Louisiana, so long as it complied with the above provisions of the law. Therefore, the fact that the Charles W. Buckley Trust acquired and sold the disputed property does not necessarily create a hiatus in the Voisin chain of title. In view of the presumption that all things are presumed to be lawfully done until proof is made to the contrary, we think that plaintiffs have shown an “apparently valid” chain of title, and that the burden would be on defendants to show the illegality of the trust.

It is argued by defendants that, under Article 4 § 16 of the Constitution of 1921, and Act 107 of 1920, a trust could only result from a donation inter vivos or mortis causa, and that since no such donation appears in the record, there could be no valid trust in Louisiana.

The foregoing provisions contemplate an administration of trusts created thereunder, and there is nothing to prevent purchases and sales of property by the trustee of a properly created trust in the course of such an administration. Defendants have not shown that the trust was not properly created or that the trustees acted beyond their authority in the acquisition and sale of the subject property.

We also note that the attempts of the trustees and of Charles W. Buckley to cure the alleged invalidity of the trust took place after Act 107 of. 1920 was repealed and before the Trust Estates Act of 1938 was adopted, at which time trusts were not permitted in Louisiana.

Assuming, arguendo, that the doubts of the Buckleys as to the validity of the trust, as expressed in the October 20, 1937 instruments which were introduced at the new trial, were soundly based in law, we do not believe the result would be different. The trustees obviously acted on the mistaken assumption that the trust owned property which they actually owned individually. Clearly they intended a good faith transfer of title to Lawrence Voisin. To ignore this intent and render the transfer invalid would be unrealistic. They executed the sale to Mr. Voisin in the same capacity in which they acquired the property from Esther Kennedy. If their designation as “Trustees” in the acquisition is surplusage, the same must be true of the same designation in the sale.

We are, therefore, of the opinion that plaintiffs have made out their title to the disputed property to the extent required by law, and we must now examine the title of defendants.

Defendants’ title is based on a sale dated October 27, 1900, from Celestine Du-Bois, the common ancestor in title, to Joseph Voisin of all of Lot 1 of Live Oaks Plantation, which includes the property which Mrs. DuBois had sold to Anna Pous-eret Rider some two years before. It is clear that defendants’ title, being later in date than that of plaintiffs’, is inferior thereto.

Defendants have also claimed title by the prescriptions of 10 and 30 years, acquirendi causa. The trial judge was of the opinion that defendants had proved their case in this respect as well. The record shows that Sidney Luke, from whom defendants inherited the property, acquired the southerly one arpent of Section 37 from Andre LeBlanc, on March 12, 1917. There is nothing in the record to indicate that Mr. Luke was in bad faith. The record is also clear that he resided on and possessed the front portion of the property from the time of his acquisition. Other evidence on behalf of defendants showed that they trapped the disputed strip from the six arpent depth to the 40 arpent line; that they placed signs and pickets along the lines thereof in the late ’30’s and in the ’50’s and Ws; and that they maintained a trainasse, or shallow canal, along the section line. Since the disputed property is all wet marsh, and suited only for possession by trapping and hunting, these acts would ordinarily be sufficient to prove up a prescriptive title in the defendants.

However, there is other evidence in the record which was ignored by the trial judge, but which should have been considered by him in reaching his conclusion. Charles W. Buckley became the record owner of the property in 1909. As pointed out above, his title was better than that of those claiming under Joseph Voisin because it stemmed from the more ancient sale by the common ancestor in title. As early as August 7, 1920, Mr. Buckley leased the property for mineral purposes, and executed other mineral leases in 1926 and 1928. On October 27, 1924, Mr. Buckley executed a fur trapping lease on the six arpent parcel to William Hunter, who assigned it to Delaware-Louisiana Fur Trapping Co., Inc. On February 28,1927, Delaware-Louisiana subleased the property to Alidore Mahler, who, in turn, sub-leased it to Harry Bourg.

The record is replete with the testimony of disinterested witnesses who trapped the disputed property under the Buckley lease until the sale to Lawrence Voisin in 1933. These witnesses also testified that they used and maintained the trainasse. The testimony of these witnesses, and of members of the Voisin family is further to the effect that the Voisins trapped the six ar-pent parcel, including the disputed property, from the time of the acquisition in 1933 until the late ’50’s.

Taken as a whole, the record reflects that both sides in this controversy have exercised acts of possession on the subject property for many years. We think it evident that neither party has ever exercised exclusive possession thereof for any extended period of time.

It is, of course, essential to any claim of acquisitive prescription that the possession on which it be based be continuous and uninterrupted. Article 3487, Civil Code. The record clearly shows that the possession claimed by defendants has been continuously interrupted by acts of possession by or under the authority of the plaintiffs and their predecessors in title. For that reason, the defendants’ pleas of acquisitive prescription of 10 and 30 years is without merit.

Accordingly, the judgment appealed from is reversed, and there will be judgment in favor of plaintiffs, except for Ezella Tros-clair Luke, who did not appeal, recognizing them as owners of an undivided ss/s6 interest in the following described property and in the proportions hereinafter set forth:

Anthony Voisin 12/36
Antoinette Voisin Fanguy 9/36
Ethel Blanchard Trahan 3/36
George Blanchard 3/36
Jane Trosclair Pellegrin 1/36
Eugene Trosclair 1/36
Zelthia Trosclair LeBoeuf 1/36
Joseph Trosclair 1/36
Johnny Trosclair 1/36
James T. Trosclair 1/36
Ruth Trosclair Aucoin 1/36
Lawrence Paul Trosclair 1/36
A certain tract of land situated in the Parish of Terrebonne, Louisiana at about 20 miles below the City of Houma, Louisiana, comprised in Lot 1 of Live Oak Plantation on the right descending bank of Bayou Grand Caillou situated in Section 37, T20S, R17E (Louis Cossier Grant), measuring one (1) arpent in width commencing six (6) arpents west of the Bayou Grand Caillou and extending to the western boundary line of Section 37, T20S, R17E; said parcel of land being bounded as follows, to-wit: On the North by other property of Anthony Voisin, et al, on the South by the southern boundary of Section 37, T20S, R17E, on the West by the western boundary of Section 37, T20S, R17E, and on the East by property of Sidney Luke, now or formerly.

All costs of this suit shall be paid by defendants.

REVERSED AND RENDERED.


author: SARTAIN, Judge.

text:
    Elizabeth Foy BROWN, Plaintiff-Appellant, v. Edwin EDWARDS, Individually, etc., et al., Defendants-Appellees.
    No. 10930.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Norbert A. Simmons, New Orleans, of counsel, for plaintiff-appellant.
    Charles W. Franklin, Baton Rouge, of counsel, for Aetna Cas. & Sur. Co.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    Lawrence SMITH and Irma Smith, Plaintiffs-Appellants, v. Edwin EDWARDS, Individually, etc., et al., Defendants-Appellees.
    No. 10931.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 15, 1976.
    Norbert A. Simmons, New Orleans, of counsel, for plaintiffs-appellants.
    Charles W. Franklin, Baton Rouge, of counsel, for defendants-appellees.
    Before SARTAIN, CONVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author:
WATSON, Judge. DOMENGEAUX, Judge
      CULPEPPER, Judge

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. Ray JOHNSON, Defendant-Appellant.
    No. 5699.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 1976.
    Rehearing Denied Jan. 26, 1977.
    Writ Refused March 25, 1977.

      Mansour & Davis by Alfred A. Mansour, Alexandria, for defendant-appellant.
    D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Bernard L. Malone, Jr., Johnie E. Branch, Jr., Bryan Miller by Bryan Miller, Baton Rouge, for plaintiff-appellee.
    Before HOOD, CULPEPPER, DOMEN-GEAUX, WATSON and HUMPHRIES, JJ.
   WATSON, Judge.

This is an expropriation suit brought by the Louisiana Department of Highways in which the defendant landowner, Ray Johnson, has appealed, alleging that the trial court erred in offsetting benefits to the remaining property against severance damages to Johnson’s home, caused by increased proximity to the highway right-of-way. Defendant Johnson also contends that the trial court erred in fixing the fee of his expert, Hab Monsur, Jr., at $750, rather than the $1400 charged Johnson; and in failing to award attorney’s fees.

Suit was filed by the Highway Department May 14, 1975, under the provisions of the Quick Taking Act, LSA-R.S. 48:441 through 48:460, as amended in 1974 to take effect January 1,1975. The particular statute governing this lawsuit is LSA-R.S. 48:453, in pertinent part, as follows:

$ $ * * ‡
“B. The measure of damages, if any, to the defendant’s remaining property is determined on a basis of immediately before and immediately after the taking, taking into consideration the effects of the completion of the project in the manner proposed or planned.
“C. The owner shall be compensated to the full extent of his loss.
U* * * * * *
“E. Reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment. Such attorney fees in no event shall exceed 25% of the difference between the award and the amount deposited in the registry of the court.”

Section C, above, is taken from Art. 1, § 4, of the Louisiana Constitution of 1974.

The value of the land and improvements taken was stipulated to be $20,202. The two appraisers for the highway department, A. Byron Core and Perry E. Futrell, Jr., initially estimated just compensation at $22,105, consisting of $18,305 for the land and improvements and $3,800 in damages. This amount was deposited by the Department of Highways in the registry of the court. The highest and best use of the strip of land taken is for highway commercial purposes. Prior to the taking, Johnson operated a service station and general store with liquor sales and a game room on the land. The strip taken comprises .546 of an acre, measuring 111.80 feet on the east, 101.06 feet on the west, 226.22 feet along the rear, and 228.50 feet along the front. The parent tract measured 511.50 feet on the east and 459.60 feet on the west and consisted of 2.485 acres. Johnson’s home, as a result of the taking, is now about ten feet, rather than approximately 114 feet, from the highway right-of-way. The testimony of Monsur, that this resulted in severance damages to the house of 70% of its $19,987 value or $13,994, was accepted by the trial court. Core appraised the before value of the house at $13,722 and Futrell at $13,818. Prior to the taking, the business and residence were separated by a fence, as well as the set-back of the house on what was, in effect, an adjoining lot. Monsur testified, on the basis of extensive real estate experience in the area, that Johnson’s only practical alternatives were to move the house or dismantle it.

The issues are:

1. whether the award for severance damages is manifestly erroneous;
2. whether the fixing of the expert witness fee of Hab Monsur, Jr. at $750 is an abuse of the trial court’s discretion; and
3. whether the trial court abused its discretion in failing to award defendant Johnson attorney fees.

I. The first issue is whether the award of severance damages is manifestly erroneous.

Appellant Johnson contends that the trial court erred in finding a benefit to the remainder of Johnson’s property and offsetting it against the severance damages to his residence.

The trial court concluded that the taking resulted in a benefit to some of Johnson’s property in that a portion of what was rear land is now front land, thus increasing its commercial value. This increase in value, calculated at $4,519.00, was deducted from severance damages of $13,994.00 to defendant’s home. A balance of $9,473.00 was awarded as severance damages. [The actual difference is $9,475.00, a minor mathematical error, which we disregard.]

Whereas the landowner formerly had a rectangular parcel of land with a service station and country store adjacent to the highway and a residence offset to the rear and side, with a fence separating the two, he now has his home virtually on the right-of-way. In addition, the residence prevents the use of the remaining property for highway commercial purposes, its highest and best use.

There is a logical contradiction in the conclusion that there is an increase in remainder value which must be offset against the decrease in value of the residence. The two are not inter-related, since use of the residence prevents commercial development of the land in the rear, which has been elevated by the highway department’s appraisers to the status of front land.

The presence of the residence makes any increase in value of the former rear land a speculative benefit. Monsur pointed out that the house in its present location is an impediment to the highest and best use of Johnson’s new front land, being too close to the right-of-way for conversion to commercial use. If the house were moved 104 feet back, putting it in the same position relative to the highway as it was before the taking, it would be next to a Cleco generating sub-station. Monsur said the cost of moving the house would be prohibitive. Monsur testified at length that there were no special benefits to the Johnson property: Johnson has no more front land than he had before; and the highest and best use of his property has not changed. His residence, however, has been damaged, and its value has substantially decreased.

The trial court relied on State, Dept. of Highways v. M. G. Realty Co., Inc., 276 So.2d 918 (La.App. 3 Cir. 1973), which can be distinguished in many respects from the instant case. In ilí. G. Realty, the frame house left after the taking had been used only for service station storage and had no proven residential value. Here, Monsur testified that:

“ . . . . it is a very nice home. I’m sure that there are a lot nicer homes, but Mr. Johnson thinks it’s a nice home and he’s raised his family there. And that’s the only home he’s got. So he’s been severely damaged.” (TR. 186)

From analysis of State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (1972), we conclude that no special benefits to Johnson’s property, as distinguished from the general benefit to all in the neighborhood, have been proven by the Department of Highways in this instance. State, Department of Highways v. Stein, 301 So.2d 384 (La.App. 4 Cir. 1974). Any benefit which might accrue also remains speculative while Johnson’s residence remains as an impediment to commercial development. While the residence now lacks market value, it undoubtedly retains a personal value to Johnson. See Housing Authority of Shreveport v. Green, 200 La. 463, 8 So.2d 295 (1942).

Nonetheless, the record shows no manifest error in the award of severance damages. Accepting Monsur’s estimate of a 70% decrease in the value of the residence and applying it to the before values of Core and Futrell, $13,722 and $13,818, respectively, results in severance estimates of $9,604 and $9,672. Therefore, the award of $9,473 is not manifestly erroneous.

II. The second issue is whether the trial court erred in setting the fee of Johnson’s appraiser, Monsur, at $750, stating that this was:

“In line with the recent trend in the jurisprudence,” (TR. 48)

As the trial court stated, the recent cases show many reductions in these fees. See State, Dept. of Highways v. United Pent. Ch. of Hodge, 313 So.2d 886 (La.App. 2 Cir. 1975), writ denied 318 So.2d 60; State, Department of Highways v. Shackelford, 331 So.2d 884 (La.App. 2 Cir. 1976); State, Department of Highways v. McDonald, 329 So.2d 898 (La.App. 2 Cir. 1976), writ refused; State, Department of Highways v. Kilpatrick, 327 So.2d 452 (La.App. 2 Cir. 1976), writ refused 330 So.2d 618 (La.); State, Dept. of Highways v. Oil Mark Corporation, 324 So.2d 606 (La.App. 2 Cir. 1975), writ refused.,

However, the fees awarded in each case must relate to the services performed by the appraisers in that case and not in some other.

It is appropriate to consider the fees of the Department’s appraisers in considering the amount to be awarded the landowner’s appraiser. (See the concurring and dissenting opinion by Miller, J., State, Dept. of Hwys. v. Ross Continental M. L., Inc., 315 So.2d 151 at 161 (La.App. 3 Cir. 1975), affirmed 328 So.2d 883 (La.1976). Core testified that his charge to the Highway Department would be approximately $1,462.50. (TR. 122) Futrell said he would charge the Department about $1,250. (TR. 156) Mon-sur’s bill to defendant Johnson totals $1,400 (D-3).

However, the Department’s appraisers made two appraisals (see infra), first using the “average value method” and then the “front-land rear-land method” and the fact that their charges were approximately $1400 and $1200 does not justify the $1400 fee billed to the landowner by appraiser Monsur.

The trial court awarded Monsur a fee of $750 which is not inappropriate for his services. The trial court did not abuse its discretion in fixing this fee for the appraiser, Monsur.

III. The third issue is whether Johnson is entitled to attorney’s fees under LSA-R.S. 48:453 E., supra, which provides that such may be awarded when the amount deposited is less than the final award.

The amount deposited by the Department was $22,105; the award was $29,675; or a difference of $7,675.

The appraisers, Core and Futrell, admitted that the Department initially used the “average value method” of appraisal which has been rejected by the courts. The deposit was made in accordance with this discredited method and the landowner was required to obtain a lawyer and litigate the amount to which he is entitled. Only when the landowner contested its suit did the Department have a second appraisal made using the “front-land rear-land method”. Then it was stipulated that the second method was correct. This is precisely the type of situation contemplated by the legislature in the enactment of LSA-R.S. 48:453 E., quoted supra.

The Louisiana Constitution and the expropriation statutes require an appraisal, according to law, and a deposit of fair value at the time of taking. This is the basis for the enactment of LSA-R.S. 48:453 E., authorizing an award of attorney fees when the deposit is less than the compensation judicially determined.

The situation in the present appeal calls for an award of attorney fees. No award was made for an attorney’s fee because, the trial judge stated in written reasons, the Department’s erroneous appraisal was corrected prior to trial. (TR. 48). The fact that the appraisal was “corrected” after taking but prior to trial does not preclude the award but, on the contrary, militates for an award of attorney’s fees. The trial court abused its discretion in failing to award attorney’s fees. An allowance of $1500, which is slightly less than the 25% permissible under the statute, is a reasonable sum for the attorney’s services.

Therefore, it is ordered, adjudged and decreed that there be additional judgment in favor of Ray Johnson and against the State of Louisiana, Through the Department of Highways, in the amount of $1,500 as reasonable attorney’s fees.

In all other aspects, the judgment of the trial court is affirmed.

For the foregoing reasons, the judgment of the trial court herein is amended and affirmed at the cost of State of Louisiana, Through the Department of Highways.

AMENDED AND AFFIRMED.

DOMENGEAUX, J., concurs and assigns written reasons.

CULPEPPER, J., concurs in part and dissents in part and assigns written reason?.

HOOD, J., concurs in part and dissents in part for the reasons assigned by CULPEP-PER, J.

DOMENGEAUX, Judge

(concurring).

Under the pronouncements of our Supreme Court in State, Through Department of Highways v. Hoyt, 284 So.2d 763 (La.1973), the only applicable appraisal technique in this taking was the “front land — ■ rear land” method. By depositing an amount based upon the “average unit value”, the Department, in choosing not to follow Hoyt, thereby subjected itself to attorney’s fees under the recently enacted LSA-R.S. 48:453(E).

For these additional reasons I concur.

CULPEPPER, Judge

(concurring in part and dissenting in part).

I concur in the majority decision except that part which awards attorney’s fees to the defendant landowner under the provisions of LSA-R.S. 48:453, E. This new provision of our law, added by Act. No. 30 of the extra session of 1974, provides that “[reasonable attorney fees may be awarded by the court if the amount of the compensation deposited in the registry of the court is less than the amount of compensation awarded in the judgment.” (Emphasis added). The use by the legislature of the word “may” leaves discretion to the district court as to whether attorney’s fees should be awarded.

The reason given by the majority for awarding attorney’s fees is that in computing the amount to be deposited the State appraisers used the “average value method” to determine the value of the property taken, rather than the “front-land rear-land method”. The majority apparently takes the view that this requires a reversal of the district judge as to attorney’s fees.

Before the trial, the State appraisers corrected their estimate, using the front-land rear-land method and this was stipulated to be correct and agreed to by the parties. Actually, only .546 acres of land was taken and in their initial appraisals, using the “averages of the whole” method, the State’s appraisers found the land taken to have a value of about $2,000. When they changed to the front-land rear-land method, their appraisals of the land taken increased to about $4,900. This difference of only about $2,900 was not a serious issue and may not have been the reason the defendant contested the amount to be awarded.

The principal issue in the case is severance damages. The State deposited $3,800. This was very seriously contested and the trial judge finally awarded $9,473. The severance damages consisted principally of the devaluation of the residence by virtue of being left only 10 feet from the new right of way line. This was a close issue.

The trial judge obviously thought that under all of the circumstances the State was not arbitrary or capricious as to the amount of its deposit. The statute clearly gives to the trial judge the discretion to decide whether attorney’s fees are .awarded in these cases. I do not think the trial judge abused his discretion in this case.


author: LEMMON, Judge. SCHOTT, Judge BEER, Judge LEMMONS, Judge,

text:
    Brison WILLIAMS v. INTERNATIONAL LUBRICANT CORPORATION.
    No. 7882.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Concurring Opinion Jan. 12, 1977.
    Writ Refused March 11, 1977.

      Jerome Friedman, Metairie, for plaintiff-appellant.
    John T. McMahon, New Orleans, for defendant-appellee.
    Before REDMANN, LEMMON, GULOT-TA, SCHOTT and BEER, JJ.
   LEMMON, Judge.

Plaintiff has appealed from a judgment dismissing his suit for workmen’s compensation benefits on an exception of prescription. The principal issue is whether weekly wage continuation payments, which defendant transmitted to plaintiff, served to suspend the running of prescription during the period of the payments. Because the trial court ruled in favor of defendant after hearing evidence on the exception, we accept all of the evidence favorable to the prevailing party.

While working as a laborer in defendant’s industrial plant on January 9, 1974, plaintiff fell on his right shoulder and side. He reported the accident and was treated for several days by the company doctor, but continued working regularly. He missed one day later in January because of shoulder pain and two days in April when he consulted a doctor for back pain. On June 11, 1974 plaintiff consulted an orthopedic surgeon, who diagnosed a herniated lumbar disc, phlebitis and pulmonary embolism, and recommended that plaintiff not return to work at the time. His last day of work was June 7.

Plaintiff continued under the doctor’s care and underwent surgery for the embolism in late July. In October he was released to return to work with the recommendation that he not continue doing the same type of work, which included loading heavy drums. When plaintiff reported for work, defendant’s personnel manager required an examination by the company doctor, who diagnosed a congenital anomaly of the lumbosacral spine and declared that plaintiff was not employable.

Shortly after plaintiff had discontinued work in June, 1974, defendant began transmitting weekly payments to plaintiff in the amount of $65.00 each. Defendant’s personnel manager testified that these payments were sick pay insurance benefits paid under an optional group insurance policy to which both the employer and employee made premium contributions. The particular benefit plan provided for payment of benefits when an employee sustains loss of regular salary by becoming disabled as a result of sickness or accidental injury, whether work-related or not. The amount of benefits was a percentage of income, up to a maximum of $65.00 per week, reduced by the amount of weekly benefits payable under workmen’s compensation law (which by coincidence at the time of plaintiff’s claim was also $65.00). These payments were continued through October, 1974. This suit was filed in July, 1975.

The original petition asserting disability as a result of the January, 1974 fall was met by an exception of prescription. Plaintiff then filed a supplemental petition alleging (1) that the disabling condition resulted from the January, 1974 accident and from “numerous other accidents occurring thereafter, on or before June 7, 1974”, and (2) that workmen’s compensation payments were made by the defendant from June 26, 1974 through October 11, 1974. The exception of prescription was reurged, tried and maintained. Hence this appeal.

Any claim based on any accident occurring before the June 7,1974 date stated in the petition was prescribed, in the absence of allegations or proof of reinjury or aggravation subsequent to that date, as in Fontenot v. Great Am. Indem. Co., 127 So.2d 822 (La.App.3rd Cir. 1961), or of delayed manifestation of disabling injury, as in Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522 (1956). There was no allegation or proof of reinjury or aggravation after June 7. Moreover, plaintiff testified that he had stiffness continuously in his shoulder, back and leg from the time of the January fall, and he was therefore aware of the manifestations of his disabling injury and should have known (at least by June, when disc problems were diagnosed) that he had suffered a compensable injury, regardless of the fact that a somewhat different diagnosis was made in October. Therefore, there is nothing in the pleadings or evidence in this record upon which one could conclude that prescription commenced to run later than June, 1974.

In this respect we reject plaintiff’s argument that the issue in this case is one of causation which must be decided on the merits and not on an exception of prescription. For purposes of considering the exception, we assume a causal relationship between a work-connected accident and the injury that manifested itself as disabling in June, 1974.

The case therefore turns on plaintiff’s contention that prescription was suspended by the $65.00 weekly payments transmitted by defendant to him, which he reasonably construed to be workmen’s compensation benefits. In essence his contention is that payment through defendant of wage continuation benefits, shortly after disability and in the same amount as compensation benefits, misled him to his detriment into reasonably withholding suit through October, and that defendant should be estopped from asserting that the one-year peremptive period began to run before October.

Since we assumed, for purposes of prescription, that workmen’s compensation benefits were due and payable after June 7, 1974, the critical question is whether plaintiff was reasonable in believing under the circumstances that the payments were workmen’s compensation benefits so that he reasonably delayed, to his detriment, asserting his cause of action during that period.

We view the resolution of this issue as one of law, essentially involving the burden of proof. The defendant who pleads prescription in a compensation case has the ultimate burden of proof. Although plaintiff’s claim under the allegations of the original petition was prescribed on the face of the pleading, the amended petition alleged payment of compensation benefits from June through October. Under the allegations of this amendment, which related back under C.C.P. art. 1153 to the date of filing of the original petition, the claim was not prescribed, and the burden of proving prescription was on defendant. Furthermore, once plaintiff introduced evidence that shortly after the disabling injury he received, from or through the employer, wage continuation payments which could reasonably be construed to be compensation benefits, the burden was on defendant-exceptor to present evidence showing that plaintiff was not reasonable in that belief.

The practical difference in the position of the parties demands this placement of the burden. An employee, with a layman’s knowledge of statutory entitlement to some type of benefits after an injury occurs on the job, is easily subject to intentional or unintentional delusion when the employer shortly after disability initiates payment of benefits in an amount equal to or greater than maximum compensation benefits. Under such circumstances it is reasonable for an employee (who receives no contrary indication from his employer at that time) to believe that the payments are in fulfillment of his employer’s statutory obligation to compensate him for the loss of salary. It is also reasonable that during the period of the payments the employee would refrain from consulting counsel in the belief that he is receiving the benefits to which he is entitled. On the other hand, the employer is well aware of the difference between compensation benefits and sick pay benefits, and in order to claim that prescription ran during the payment of sick pay benefits, the employer must show that the employee was not reasonable in such a belief.

Thus, in Byrd v. Kaiser Aluminum and Chem. Corp., 314 So.2d 448 (La.App.4th Cir.1975) the employer successfully pleaded prescription by showing that the employee “applied for non-industrial accident benefits from the outset” and thereby himself categorized the claim as one which was not compensable. And in Richard v. Liberty Mut. Ins. Co., 188 So.2d 432 (La.App.3rd Cir.1966), cited in the reasons for judgment in this case, the trial court found as a fact that the personnel supervisor had explained at plaintiff’s request the difference in benefits after payment was commenced.

On the issue of the reasonableness of plaintiff’s belief in this case, the personnel manager testified that he explained all benefits under the group insurance policy to plaintiff at the time of hiring; that a pamphlet describing the optional plan for sick pay supplemental insurance is given to each new employee; that plaintiff authorized the payroll deduction of $1.90 per month for this particular benefit plan; and that plaintiff never made a claim for or was paid workmen’s compensation, but rather was paid sick pay supplemental benefits.

The benefit checks, which were not introduced into evidence but were referred to in testimony, indicated payment in connection with a claim under group coverage, but did not state the payments were not workmen’s compensation. Nothing in the testimony of the personnel manager indicates that he informed plaintiff after June 7 that compensation was not due or that the $65.00 payments were not workmen’s compensation benefits.

Even accepting all of the evidence presented by defendant on the issue and disregarding that presented by plaintiff, we cannot conclude that plaintiff was unreasonable in his belief that the payments were compensation benefits.

We do not suggest lack of good faith by this defendant. The record does not even hint at this. The problem is that defendant innocently set up circumstances under which the employee could reasonably believe he was receiving compensation benefits and thus defer to his detriment the filing of the compensation suit. Since the defendant did not show that plaintiff was notified these payments were not compensation or that plaintiff should have otherwise known this, we hold defendant under these circumstances is estopped from asserting that the five months, during which it transmitted weekly payments to plaintiff, constituted part of the one-year peremption period.

For these reasons, the judgment of the trial court is reversed, and it is now ordered that the exception of prescription be overruled and the case remanded for further proceedings.

REVERSED AND REMANDED.

SCHOTT, J., concurs and assigns reasons.

BEER, J., dissents and assigns reasons.

SCHOTT, Judge

(concurring in the result).

We are confronted here with a judgment on an exception of prescription, not a judgment on the merits. It is understood that plaintiff at trial on the merits must prove that he became disabled in June as the result of an incident or accident suffered in the course and scope of his employment. For our purpose here, however, we assume that the herniated lumbar disc, phlebitis and pulmonary embolism which were diagnosed in June and which ultimately disabled him, were job related so that plaintiff was, as a matter of law, entitled to workmen’s compensation payments. In other words, we assume an employee who was permanently disabled from a job related accident and who, a short time thereafter, began to receive checks for the amount to which he was entitled under the law and .circumstances.

Defendant’s answer in support of its prescription argument is that these were not workmen’s compensation payments at all but were benefits under a sickness or accident insurance policy which was available to employees who wished to contribute toward the premiums. Defendant showed that it was self employed for workmen’s compensation purposes but the sickness or accident insurance policy was sold to it and administered by Travelers Insurance Company; the checks sent by defendant to plaintiff were issued by Travelers and not by defendant; at the time plaintiff was employed a brochure was handed to him explaining the insurance policy; $1.90 was taken out of plaintiff’s salary each week to cover his voluntary contribution toward that insurance policy; and defendant signed a form which proved to be an application for benefits under the insurance policy. However, as pointed out in the majority opinion, the portion of the form signed by plaintiff was blank for the most part. Items left blank included the date last worked, whether hospitalized or whether returned to work, and the date if so when he became disabled, when was he confined to the hospital, cause of disability and “if disability due to accident, state when, where and how it occurred.”

While it is arguable that the failure to answer those questions, especially the last, connotes a negative response so that plaintiff in effect was negating the possibility that his disability was due to accident; it is arguable with equal force that since plaintiff did not answer the question at all no inference can be drawn either way.

Thus, with the initial assumption for my purpose here that plaintiff was disabled and entitled to receive workmen’s compensation benefits of $65 per week, starting in June, 1974, I find the facts to be: 1) Plaintiff received from defendant payments of $65 per week; 2) Defendant did not consider these weekly payments of $65 per week as workmen’s compensation benefits but instead benefits from an accident and sickness insurance policy for which plaintiff had contributed a portion of the premium; but 3) Plaintiff thought these $65 checks were workmen’s compensation benefits and had no reason to believe otherwise.

I would conclude that under these circumstances defendant is precluded as a matter of equity, i. e., estopped from invoking the plea of prescription ordinarily available one year after the date when the disabling injury develops. This estoppel resulted essentially from defendant’s failure or neglect to make it clear to plaintiff that the payments were not workmen’s compensation payments.

This is not a case where an employer did something with the result that the employee was lulled into thinking he was receiving compensation payments when he was not. This is a case where the employer is assumed to have owed compensation to an employee who had no reason to think otherwise, the employer caused the employee to be paid the amount to which he was entitled in compensation payments, and the employer did nothing to inform the employee that these were not compensation payments, albeit, the employer knew or considered them to be something other than compensation payments.

BEER, Judge

(dissenting).

I respectfully dissent, being of the view that the able trial judge was correctly guided by the holding in Richard v. Liberty-Mutual Insurance Company, 188 So.2d 432 (La.App.3rd Cir., 1966).

I view the majority opinion as imposing an onerous and, thus, unreasonable burden on the employer. There is no evidence whatsoever to counter the clear proof that Mr. Williams was properly advised of the type of coverage afforded to him and for which deductions were made against his weekly pay check. In my view, the benefit payments were obviously being made as a result of Mr. Williams’ group coverage claim, and he either knew or should have known that this was so. The majority opinion observes that “defendant did not show that plaintiff was notified that these payments were not compensation . . . ” I can find no authority for the imposition of such a requirement. Yet, the majority concludes that “these circumstances” estop defendant from relying upon the undisputed fact that the payments were, as noted on the checks, “in connection with your claim under your group coverage.”

I respectfully dissent.

LEMMONS, Judge,

concurs in denial of the application for rehearing and assigns reasons.

In its application for rehearing defendant argues that it is being penalized because plaintiff failed to answer the pertinent question about occupational disability on the form request for benefits.

That argument has validity only to the extent that the result reached by this court would probably have been different if plaintiff had answered all questions. If he had indicated a non-occupational disabling injury, the Byrd case would control, and if he had indicated an occupational injury, the sick pay insurer would probably have declined to pay benefits and the problem would never have been presented. However, the benefits were in fact paid based on the incomplete request, and the payments were transmitted by defendant to an employee who contends he was then entitled to workmen’s compensation benefits because of disability caused by a job-related injury (a contention we accept as true for purposes of this exception, but which plaintiff may very well be unable to prove at a trial on the merits).

We have simply held in this case that the employer under these circumstances (that the employer unintentionally set up) must show by presentation of facts that the employee was unreasonable in believing the payments were made in discharge of the employer’s obligation to pay workmen’s compensation. On this point we have accepted all of the facts shown by the employer (and disregarded all facts presented by the employee), but we conclude that these facts simply do not show unreasonableness.

      . The original compensation act, requiring suit within a year of the “injury”, was amended to require suit within a year of the “accident”, except when the injury does not develop immediately after the accident. Nevertheless, the amended act requires suit within one year from the time the injury develops and within two years from the date the accident occurred. Malone, Louisiana Workmen’s Compensation Law and Practice § 384 (1951).

      . We distinguish the case of Bigham v. Swift & Co., 229 La. 341, 86 So.2d 59 (1956), relied upon by plaintiff, in which the claimant continued to work for about seven months after the accident and filed suit within a year thereafter, contending delayed manifestation of disability. The court simply held that the exception of prescription should be overruled because the suit was filed timely after the alleged late development of disability and that the issue of causation between the accident and the subsequently developing disability should be determined at the trial on the merits.
      The Bigham case would be controlling here only if the date of plaintiffs suit was more than one year after the January accident but was less than one year after the June manifestation of disability.

      . In reargument before the five-judge panel, defendant pointed out many facts and circumstances supporting the reasonableness of its belief that the injury was not work-related, thus explaining why it characterized the claim and furnished the form application for sick pay supplemental benefits. The more important issue, however, is the reasonableness of the claimant’s belief that the payments were in discharge of the employer’s workmen’s compensation obligation.

      . Although defendant in this case contends that plaintiff applied for sick pay benefits, the section of the three-part application completed by plaintiff was mostly left blank, including those questions as to the cause of disability and the description and location of any accident. Thus, this case is distinguishable from the Byrd case in that this employer did not show this employee could not reasonably have believed in applying for wage continuation that his claim was compensable.

      . It is the reasonableness of the employee’s belief that is relevant, because the employee is the one who loses substantive rights by libera-tive prescription. By an adverse decision on an exception of prescription the employer merely loses a possible chance to avoid defending the claim on the merits.


author: STOULIG, Judge. PER CURIAM.

text:
    PARISH OF JEFFERSON v. BAYOU LANDING LIMITED, INC., d/b/a Airline Highway Adult Books and Movies, et al.
    No. 8088.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 18, 1977.
    Writ Granted March 4, 1977.

      Harry Lee, Parish Atty., Robert H. Fray, Asst. Parish Atty., Gretna, for plaintiff-ap-pellee.
    Dufour, Levy, Marx, Lucas & Osborne, William M. Lucas, Jr., New Orleans, for Bayou Landing Limited, Inc., defendant-appellant.
    Before GULOTTA, STOULIG and BEER, JJ.
   STOULIG, Judge.

Bayou Landing Limited, Inc., doing business as Airline Highway Adult Books and Movies, has appealed from a judgment “ * * * permanently enjoining and restraining them, their agents, servants, employees, lessees, or any other person acting under their authority, from selling, distributing, exhibiting and/or displaying obscene materials in and upon the premises located at 3936 Airline Highway, Jefferson Parish, State of Louisiana.”

Appellant claims the trial court erred in (1) overruling an exception of no cause and/or right of action; (2) basing injunc-tive relief on illegally seized evidence; and (3) issuing an injunction which does not describe in reasonable detail the material which is prohibited from being sold, displayed, distributed or exhibited.

The first complaint of error lacks merit. We quote that portion of plaintiff’s petition that states a cause of action with precision and clarity:

“V.
“That the said Bayou Landing Limited, Inc., through its agents, servants, employees and/or any other person acting under its authority, has been conducting the sale of books, magazines and permitting and allowing the viewing of movies at the aforementioned location since on or about June 1, 1975.
“VI.
“That the aforementioned building bearing Municipal Number 3936 Airline Highway, Metairie, Louisiana, has been and is presently used for the sale and viewing of obscene books, magazines, materials, photographs and movies, and obscenity has been and is presently being conducted, carried on, continued and permitted to exist consistently and as a practice for an indefinite period of time.
“VII.
“That the sale and viewing of the aforementioned books, magazines, materials, photographs and movies is open to the public in general and such exhibition outrages decency, shocks humanity and is contrary to the good morals of the people of this Parish.
“VIII.
“That the display and exhibition of books, magazines, materials, photographs and movies amounts to hard core sexual conduct and is in violation of Louisiana Revised Statutes 14:106, Page 2, et seq.
“IX.
“That an investigation has been made by the Sheriff’s Office for the Parish of Jefferson, and more particularly, on January 9, 12, 13, 14 and 16, 1976. Deputy Sheriffs visited the premises located at 3936 Airline Highway, observed numerous magazines, books, photographs, materials and movies which depicted sexual intercourse, homosexual and lesbian activities along with acts of sadism and masochism.
“X.
“That most if not all said books, magazines, materials, photographs and movies were located within the plain view of the public.
“XI.
“That some magazines depict oral copulation on the front cover of said magazines and sexual intercourse on the reverse thereof.
“XII.
“That the sale, distribution, exhibition and/or display of obscene materials amounts to the maintenance of a nuisance in and upon the building located at 3936 Airline Highway and that said maintenance of said nuisance has been and is presently being conducted by the defendants, BAYOU LANDING LIMITED, INC., d/b/a AIRLINE HIGHWAY ADULT BOOKS AND MOVIES and by and with the apparent consent of the owner of said property, HARRIS T. LAS-SERE.
“XIII.
“That petitioner herein is proceeding against the defendants under the provision of Louisiana Revised Statutes 13:4711, et seq., to abate the actions of the defendants which amount to a public nuisance.”

These allegations are sufficient to state a cause of action under R.S. 13:4711, et seq., which declares obscenity, as defined by R.S. 14:106, a public nuisance. Under R.S. 13:4712, certain designated parish officials are authorized to petition by civil proceeding for an injunction directing the person or company violating the obscenity laws to cease and desist. The petition fully apprises appellant of the nature of the action and need not enumerate the title and description of every one of the myriad of publications and films it seeks to enjoin the defendant from selling or displaying. The pleading states that the material sold and exhibited in defendant’s bookstore “ * * outrages decency, shocks humanity and is contrary to the good morals of the people of this Parish.” It describes in detail the nature of the activities depicted that are defined as obscenity by Louisiana’s Criminal Code. We hold it was proper for the district court to overrule the no cause of action exception. As to the no right of action plea, appellant has made no serious contention the parish attorney lacks capacity to act; therefore, we assume the term “no right of action” is treated by defense counsel as synonymous with “no cause of action.”

The second complaint of error is that the trial court admitted evidence that should have been suppressed because it was illegally seized. Because this is not a criminal matter, the Fourth and Fifth Amendment arguments relating to illegal search and seizure and self-incrimination, quoad admissibility of evidence, are not relevant. In a civil action, obscene material may be seized prior to the initiation of the suit to enjoin the sale or display of the allegedly offensive material if the statute under which it is seized provides for: (1) an adversary proceeding in which it may be judicially determined whether the material in fact is obscene, and (2) a speedy determination so that the material in question cannot be withheld from its owner for a lengthy period while the judicial machinery operates to a final conclusion. Gulf States Theatres of La., Inc. v. Richardson, 287 So.2d 480 (La.1973), declared the predecessor statutes to those we now consider unconstitutional, because, inter alia, the owner of the confiscated material had no opportunity to be heard before a preliminary injunction was granted and the delay involved in appellate review was a potential source of great monetary loss and deprivation of property to the owner of the material taken.

As amended, R.S. 13:4711, et seq., corrects the constitutional deficiencies noted in Gulf States Theatres. R.S. 13:4713 makes available a preliminary hearing within 24 hours of the time notice of the petition for injunction has been served. If a permanent injunction is issued by the trial court, the party enjoined may appeal sus-pensively and the court of appeal is directed to hear the matter as expeditiously as possible. The amendment obviates the problem of unconstitutional deprivation of property.

In this case on June 2, 1976, vice squad detectives of the Jefferson Parish Sheriff’s Office, armed with a search warrant, confiscated numerous magazines, books, movies and artificial apparatus used in various sexual activities from the Airline Highway bookstore. On June 4, 1976, this suit was filed, its allegations of obscenity based primarily on the material seized two days before. Appellant was cited to show cause why it should not be enjoined from continuing to sell and display obscene materials. On June 10, 1976, this pleading was served on defendant’s appointed agent for service of process. On June 28, 1976, defendant filed a motion to continue this rule for injunction and as a result the case was continued to July 14, 1976, when it was heard. Presumably defendant would have been entitled to insist on a hearing on June 11, but instead it chose to postpone the initial hearing. A speedy adversary hearing being available to defendant, the constitutional requisite as set forth in Gulf States Theatres is met. Therefore we conclude the evidence seized in the June 2, 1976 raid was validly before the court and its use as evidence to enjoin defendant’s activities violates no constitutional guarantees as to the person or property of the defendant.

As to the evidence itself, there is no question that the books, magazines and movies typify the hard core pornography sold at the bookstore. The theme stated and restated by the voluminous evidence is depravity and perversion repugnant to good conscience and detrimental to public morals. The trial court viewed what was stipulated to be movies representative of the entire stock confiscated and concluded they were obscene. So did we. We are convinced “ * * * that the average person applying contemporary community standards would find that the conduct, taken as a whole, appeals to the prurient interest; and the hard core sexual conduct, as specifically defined herein, is presented in a patently offensive way; and the conduct taken as a whole lacks serious literary, artistic, political or scientific value.” (R.S. 14:106, subd. A(2)).

Defendant makes no attempt to justify the filth confiscated as a work redeemable by a claim of artistic value or scientific worth. Indeed it would be ludicrous to argue these materials could make any wholesome contribution to society. The contents of the magazines, books and film are designed to appeal to, among others, those persons obsessively interested in lascivious conduct. They depict sexual perversion in the ultimate in all of its forms—the intent is and the result is hard core pornography.

What defendant does attack is the lack of specificity in the judgment of injunction. Appellant points out C.C.P. art. 3605 requires a valid injunction to describe in reasonable detail the act or acts sought to be restrained. See Allied Nav. Co., Inc. v. International Org. of M., M. & P., 272 So.2d 23 (La.App. 4th Cir. 1973).

As the judgment is now cast it reads:

“IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the Parish of Jefferson and against defendant, Bayou Landing Limited, Inc., d/b/a Airline Highway Adult Books & Movies, permanently enjoining and restraining them, their agents, servants, employees, lessees, or any other person acting under their authority, from selling, distributing, exhibiting and/or displaying obscene materials in and upon the premises located at 3936 Airline Highway, Jefferson Parish, State of Louisiana.”

We agree the order should be more specific and, based on the evidence before us, we recast the injunction to prohibit the continued violation of those sections of R.S. 14:106 in the language of the act itself. After its predecessor statute was declared unconstitutional by the Louisiana Supreme Court in State v. Shreveport News Agency, Inc., 287 So.2d 464 (1973), because it was not sufficiently specific in its definition of obscenity, the applicable section of the criminal code was amended to incorporate what the United States Supreme Court cited as a constitutionally acceptable regulation in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), viz:

“We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.”

Obscenity is a form of expression not protected by the First Amendment. Gulf States Theatres v. Richardson, supra; Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964). The material displayed by and sold by defendant falls within, the definition of obscenity in R.S. 14:106. If, as defendant suggests, we must limit our injunction to particular items by describing each title, this would render it impossible for the State to enforce its prohibition against selling and/or displaying obscene material. It is within the power of the judiciary to enjoin the continued sale and display of hard core pornography. It is sufficient for injunctive purposes to designate or describe in the order the particular conduct, the portrayal of which, either pictorially or in writing, would constitute hard core sexual conduct. In recasting the judgment of the trial court we point out that defendant should have no difficulty complying with this order because the type of obscene activities it may no longer exploit for commercial purposes are explicitly defined.

Accordingly it is ordered that there be judgment in favor of the Parish of Jefferson and against the defendant Bayou Landing Limited, Inc., doing business as Airline Highway Adult Books and Movies, enjoining and restraining it, its agents, servants, employees, lessees, or any other person acting under its authority from selling, distributing, exhibiting or displaying for commercial gain obscene materials depicting the following activities defined by R.S. 14:106 as hard core sexual conduct:

“(a) Ultimate sexual acts, normal or perverted, actual, simulated or animated, whether between human beings, animals or an animal and a human being; or
“(b) Masturbation, excretory functions or lewd exhibition, actual, simulated or animated, of the genitals, pubic hair, anus, vulva or female breast nipples; or
“(c) Sadomasochistic abuse, meaning actual, simulated or animated, flagellation or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals or female breast nipples, or the condition of being fettered, bound or otherwise physically restrained, on the part of one so clothed; or
“(d) Actual, simulated or animated, touching, caressing or fondling of, or other similar physical contact with, a pubic area, anus, female breast nipple, covered or exposed, whether alone or between humans, animals or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification; or
“(e) Actual, simulated or animated stimulation of a human genital organ by any device whether or not the device is designed, manufactured and marketed for such purpose.”

Appellant is to pay all costs.

AMENDED AND AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In its application for rehearing, Bayou Landing Limited, Inc., correctly points out we erred in reciting that the pornographic material was confiscated by vice squad detectives on June 2, 1976 when, in fact, the seizure was made June 2,1975. Our factual error does not change the result.

We reaffirm our conclusion that R.S. 13:4711 et seq., as amended, is constitutional because the right to demand a speedy hearing is made available. In this case the petition for injunction was not filed until one year and two days after the seizure; however, during that period, defendant took no action to have its pornographic material returned. In fact it acquiesced in the delays and affirmatively waived constitutional complaints of not having been provided a speedy hearing by applying for a continuance after the petition for injunction was filed. R.S. 13:4713 sets forth the procedure for an expeditious adjudication, but permits the adverse party to consent to delays in the hearing.

The application for rehearing is denied.

APPLICATION DENIED.


author: HUMPHRIES, Judge.

text:
    Elvin MARICLE, Plaintiff-Appellee, v. Sam CLOUD, Defendant-Appellant.
    No. 5716.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Rehearing Denied Jan. 26, 1977.

      William E. Skye, Alexandria, for defendant-appellant.
    Drewett, Jacques & Thomas, by Robert W. Thomas, Lake Charles, for plaintiff-ap-pellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   HUMPHRIES, Judge.

Defendant, Sam Cloud, appeals a judgment awarding plaintiff Elvin Maride workmen’s compensation in the amount of $65.00 per week for 100 weeks plus penalties and attorney’s fees. Defendant has urged by motion that the record be corrected by the removal of the deposition of one Dr. Darrell L. Henderson, or in the alternative, that the case be remanded for the taking of additional testimony.

MOTION TO CORRECT AND/OR REMAND

In dealing with this motion we note that the trial court by implication ruled that the deposition was admissible. The implication is evidenced by the trial court’s reference to the deposition in its opinion. Evidence found admissible is properly included in the record lodged on appeal. Rules 1 and 3, Uniform Rules of the Courts of Appeal. The motion to correct or remand the record is therefore denied.

Defendant’s contention as to the admissibility of this deposition is more appropriately heard with the merits and will be discussed therein.

ON THE MERITS

In considering the merits it is first necessary to dispose of defendant’s objection as to the admissibility of the deposition of Darrell L. Henderson. Defendant urges this evidence was erroneously considered by the trial court. The crux of the contention is that although he was notified of the taking of the deposition (LSA-C.C.P. 1433) the defendant neither attended nor stipulated as to its general use as it recites. Further, that pursuant to LSA-C.C.P. Art. 1428, the plaintiff failed to establish one of the criteria necessary for the introduction of a deposition into evidence. We agree and exclude consideration of this deposition. See Stephens v. Cotton Brothers Baking Co., 263 So.2d 908 (La.App. 3 Cir. 1972). Therefore, the remaining evidence will be all that is considered.

Defendant avers that the trial court erred in four other particulars:

1) The trial court erred in denying defendants’ exception of prematurity.
2) The trial court erred in ignoring that the testimony of the experts that plastic surgery on the eye would be premature for at least one year after the accident.
3) The trial court erred in awarding maximum benefits for disfigurement prior to the time that plastic surgery could be performed.
4) The trial court erred in awarding penalties and attorney’s fees.

A brief statement of facts is given to preface the discussion of the issues.

On July 31, 1974 Elvin Maride was injured while in the course and scope of his employment with the defendant Sam Cloud. The defendant’s business was the logging industry.

Plaintiff-employee operated a power saw at work. On the day in question, plaintiff lost control of his power saw and as a result sustained a severe laceration on his face and a small cut on one of his hands.

Plaintiff was taken to a surgeon, Dr. Thomas Lacour in Oakdale, Louisiana, for emergency treatment. Dr. Lacour sutured the wound and observed plaintiff until sometime in August when he referred the plaintiff to a Dr. Robinson’s Clinic in Alexandria. It was Dr. Lacour’s opinion, as stated in his surgeon’s report, that plaintiff would suffer permanent scarring and difficulty in closing his left eye. It was the treating doctor’s opinion that plaintiff would be disabled in relation to his duties on the job for six to eight weeks.

On August 13, 1974 plaintiff visited Dr. James W. Welch and returned on August 28, 1974 for a follow-up examination. Following the second examination it was the opinion of Dr. Welch that plaintiff had regained total function in his left eye and could return to work. Further, Dr. Welch stated in his deposition that whether the scar, in healing, would contract, causing trouble with closing the eyelid, would take about six to twelve months to determine. However, he was certain that the scar was quite noticeable and would cause permanent disfigurement whether or not it interfered with the actual function of the eye. Dr. Welch was sure that cosmetic surgery performed on a sear of this size would leave some residual disfigurement.

Dr. Juanedd Berry, who examined plaintiff on September 6,1974, agreed in diagnosis and description of the scar with Dr. Welch. He described the scar as being highly noticeable and running some six inches in length, beginning at the top of the forehead and running vertically down through the left eyebrow on through the eyelid across the nose and ending at the upper lip. This observation agreed with the trial court’s own observation. The scar was approximately six inches in length and about one-sixteenth of an inch wide. Dr. Berry added that he found no indication that the scar would cause any defect in the physical function of the left eye. However, he was of the opinion that the scar constituted a noticeable physical disfigurement.

We note here that the defendant also had the opportunity to view the plaintiff during this period of time and did so, and that although aware of Dr. Lacour’s report and Dr. Welch’s examination, defendant terminated benefits as of August 28, 1974.

On December 3, 1974 plaintiff, through counsel, demanded from the defendant Sam Cloud all compensation benefits presently owing to plaintiff. Another demand was communicated, by plaintiff’s attorney, to a Mr. Hetherwick, who was handling the claim for the defendant, by letter dated January 17, 1975. Several attempts at contact for discussion of the claim by Mr. Hetherwick with plaintiff’s counsel were made but proved futile. Suit was filed on February 5, 1975.

Defendant filed an exception of prematurity on February 19,1975. The exception was heard on October 22, 1975. The thrust of the exception was that plaintiff’s injury could not correctly be diagnosed and treated at the time suit was filed and further that benefits were terminated in August when plaintiff was deemed capable of returning to work by the examining physician Dr. Welch.. Later, defendant filed his answer reserving his rights in the dilatory exception. Trial on the merits was set for February 12,1976. Before the merits were heard, the trial court overruled the exception and then proceeded to the merits.

The trial court found that plaintiff was permanently and severely disfigured as of August 28, 1974, the date compensation benefits were terminated. We agree. All doctors concurred that plaintiff was disfigured on that date; their desire to wait to perform corrective surgery was based upon whether the scar in healing would involve and impair the physical function of plaintiff’s left eye. Clearly plaintiff’s claim for severe and permanent disfigurement had manifested itself on August 28, 1974 and was compensable. To force plaintiff to wait until surgery could be performed to press his claim would place plaintiff in the unenviable position of contending with the more onerous bar to an action, prescription.

The defendant also urges as error the award of maximum benefits under LRS 23:1221(4) for severe and permanent disfigurement. We note that all doctors were of the opinion that the scar was noticeable in that it ran perpendicular to the natural lines of the face. They described the scar as being about six inches in length and about a sixteenth of an inch wide. Further, the scar left a noticeable gap where it traversed the eyebrow. Finally, the trial judge viewed the plaintiff on two separate occasions approximately 14 and 18 months after the injury manifested itself. The record supports the trial court’s discretionary award of maximum benefits under LSA 23:1221(4).

In conclusion, defendant attacks the trial court’s imposition of penalties and attorney’s fees. The basis of this alleged error is twofold. First, that the defendant is insured and therefore under R.S. 23:1201.2 penalties and attorney’s fees may not be imposed upon the employer. Secondly, that defendant was negotiating or attempting to negotiate, pursuant to plaintiff’s December 3, 1974 demand, a settlement of the claim.

In dealing with defendant’s first contention, we note the record is devoid of any proof that defendant is insured. It is extremely difficult therefore to say the trial court erred in necessarily concluding that the defendant Cloud was not insured. The fact of whether or not this employer is insured is within the peculiar knowledge of the defendant. Further, existence of insurance is a bar or defense to the imposition of penalties and attorney’s fees against an employer. It is incumbent upon the defendant to prove a bar to recovery. To place the burden upon the plaintiff would be to establish a nonsensical rule that the plaintiff must establish a negative (lack of insurance) by affirmative evidence.

Defendant’s second argument is without merit. The record amply supports the trial court’s finding that the employer arbitrarily and capriciously terminated benefits as of August 28, 1974. The subsequent demand for resumption of payments as of December 3, 1974 was inconsequential to the imposition of penalties and attorney’s fees. The jurisprudence is to the effect that where the discontinuance of compensation is arbitrary and capricious, the employee need not make a demand for resumption in order to recover penalties and fees. See Chavis v. Maryland Casualty Corporation, 307 So.2d 663 (La.App. 3 Cir. 1975); Griffin v. Kelly-Springfield Tire Company, 316 So.2d 529 (La.App. 2 Cir. 1975). In this case, it was the defendant’s duty to pay, at least, the minimum amount of compensation for the remainder of the 100 weeks. Fruge v. Hub City Iron Works, Inc., 131 So.2d 593 (La.App. 3 Cir. 1961).

The judgment of the trial court is correct in all respects. Costs of appeal are taxed to defendant-appellant.

AFFIRMED.


text:
    Jimmy (P.G.) STANSBURY, Plaintiff-Appellant, v. CITY OF OPELOUSAS, Defendant-Appellee.
    No. 5726.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Rehearing Denied Jan. 26, 1977.
    Taylor & Trosclair by Frank P. Trosclair, Jr., Opelousas, for plaintiff-appellant.
    Richard B. Millspaugh, Salvador L. Diesi, Opelousas, for defendant-appellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   HUMPHRIES, Judge.

This is an appeal by plaintiff, Jimmy Stansbury, from a judgment denying his claim for reinstatement and back pay from the City of Opelousas. The trial court held that plaintiff’s claim for back pay and reinstatement was barred either because plaintiff had by his own actions terminated his employment or the doctrine of laches would prevent him from pursuing his claim at this late date. We affirm.

The facts of the instant case are of paramount importance to a determination of this matter and will be briefly stated.

In August of 1972 plaintiff Stansbury, an officer on the Opelousas City Police Force, was charged by affidavit with theft. On August 30, 1972 plaintiff was suspended from his duties on a motion passed before the Council. Stansbury was notified of this suspension orally by the Assistant Chief of Police. This suspension was confirmed by a letter dated September 1,1972 given Stans-bury by the Assistant Chief of Police.

On September 6, 1972, by letter, Sgt. Stansbury requested a hearing and investigation of the suspension before the Opelou-sas Fire and Police Civil Service Board. The Board did not act on this request for an investigation but instead, on October 10, 1972, ratified the suspension of “certain” policemen. Also in October, Stansbury was formally indicted by the St. Landry Parish Grand Jury. The Civil Service Board, on October 26,1972, pretermitted consideration of Stansbury’s September 6 appeal until final disposition of the criminal proceedings.

On November 20, 1972 plaintiff plead guilty to a reduced charge on misdemeanor theft and was sentenced to serve six months in the parish prison. By letter dated November 22, 1972 the Chief of Police notified Stansbury that he was dismissed from the Opelousas Police Department. The appointing authority was the proper entity to exercise the dismissal but the plaintiff made no objection, in fact, he acquiesced. Plaintiff began serving his sentence on November 22,1972 and was incarcerated until February 26, 1973. Plaintiff did not report for work after his release.

In -May 1973, Stansbury requested the return of all funds contributed to the police pension fund. This request was made by letter through the attorney who represented him during the criminal proceedings. No action was taken to restore these funds to Stansbury until June, 1974 when Stans-bury again requested that these funds for the period of his tenure as a police officer be returned. In this letter he stated .

“I began my employment with the Opelou-sas Police Department on November 1, 1960, which employment was terminated on August 29, 1972 . . . ” In support of his claim for these funds Stansbury cites Hoffpauir v. City of Crowley, 284 So.2d 114 (La.App. 3 Cir. 1973) which allowed the return of pension funds to police officers who had been terminated. The retirement funds were then refunded to Stansbury.

Finally, in September of 1974 Stansbury moved before the Opelousas Civil Service Bp^rd .to press his original appeal filed as of September 6, 1972. The relief sought was reinstatement and back pay. The grounds for the claim were that neither the suspension of September 1, 1972 nor the termination of November 22, 1972 were in accordance with the Articles of the Constitution of 1921 dealing with civil service employees; therefore, Stansbury, never having been properly dismissed nor terminated is entitled to reinstatement and back pay. Subsequently, this suit moved back and forth between the Civil Service Board and the District Court over issues involving jurisdiction of this claim. Finally, a hearing was held on November 8, 1975 before the Civil Service Board to determine the merits of Stansbury’s claim. Testimony was taken before the board, and upon conclusion of the case the Board denied plaintiff’s claim. Notice of appeal from the Board’s decision was given and the appeal lodged in the Twenty-seventh Judicial District Court. It was stipulated that the district court would be exercising either supervisory or original jurisdiction as the case required. All evidence taken before the Civil Service Board along with accompanying letters, etc. were admitted into evidence. No other evidence was adduced and the matter was submitted to the district court. Judgment was signed on July 7, 1976 and appeal taken July 19, 1976.

The trial court denied plaintiff relief and in its reasons for judgment based its conclusion on the doctrine of laches. Further, the trial court pointed out that although there was no formality of termination as prescribed by Article 14, Section 15.1 (et seq.) of the 1921 Constitution (adopted by article 10 of the 1974 Constitution) adhered to in this case, plaintiff by allowing almost two years to pass before passing his claim and by maintaining inconsistent positions as regards his status of employment with the City during those two years would be barred from recovery by the application of laches. The trial court found specifically that there was no effective dismissal, and any suspension lapsed after 90 days. See R.S. 33:2500 and La.Const. 1921, Art. 14, Sec. 15.1(30).

It is apparent from the record that plaintiff’s guilty plea of November 20, 1972 and serving sentence pursuant thereto in effect terminated his employment. It would take an eccentric imagination indeed to suppose one could perform the duties of a law enforcement officer and recover compensation for such while serving time for an offense which was his duty as a law enforcer to deter.

Further, all actions by the plaintiff subsequent to his release from prison in seeking other employment and requesting return of pension funds to which he was entitled as a “former policeman” indicate that the plaintiff had consciously abandoned employment with the Opelousas Police Force.

Plaintiff relies on Bradford v. City of Shreveport, 305 So.2d 487 (La.1974) in urging that the trial court erred in applying the doctrine of laches. The criteria as outlined in Bradford, supra, to establish laches is that the party pleading such a defense must establish (1) unreasonable delay, and (2) substantial prejudice to or upset of the City’s fiscal affairs.

Plaintiff does not urge that the first criteria was not met but that the burden of proof of the second criteria was not met. The trial court ably pointed out that Bradford, supra, dealt with a claim for recovery of overtime pay and not reinstatement, which necessarily means a duplication of salaries for the same position for a specific period of time. Further, the trial court pointed out another circumstance peculiar to this case in that plaintiff has maintained inconsistent positions as to his status in his dealing with the City of Opelousas, i.e., retrieval of pension funds, not attempting to work after serving his sentence, etc. This inconsistency or acquiescence is recognized as being an element which gives rise to the application of laches. 30A C.J.S. Equity § 117 et seq.

It is our jurisprudence that the doctrine of laches is based upon the sound public policy that a claimant should pursue his action for relief with all diligence and speed so that funds normally paid to claimant may not be diverted to an equally valid and lawful public purpose thereby upsetting the orderly fiscal processes of government. See Devillier v. City of Opelousas, 247 So.2d 412 (La.App. 3 Cir. 1971) and eases cited therein. The jurisprudence is also to the effect that laches is an equitable doctrine the application of which rests in the sound discretion of the trial court. Molero v. Bass, 322 So.2d 452 (La.App. 4 Cir. 1975). The record reveals circumstances peculiar to this case which give rise to the doctrine of laches; the trial court so found; we do not disturb the trial court’s judgment in a discretionary decision unless manifestly erroneous.

Upholding the trial court in this respect is dispositive of all other allegations of error; therefore, discussion of remaining allegations of error is pretermitted; costs of appeal taxed to plaintiff-appellant.

JUDGMENT AFFIRMED.