author: GUIDRY, Judge.

text:
    Byron GRABERT, Wiltz Segura and Pat Hebert, Plaintiffs-Appellants, v. JAMES C. NOEL FLYING SERVICE, INC., et al., Defendants-Appellees.
    No. 6537.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    Rehearing Denied Aug. 15, 1978.

      Cooper & Sonnier, John E. Ortego, Abbe-ville, for plaintiffs-appellants.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Dennis L. Doise, Lafayette, for defendants-appellees.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

In this suit, plaintiffs seek to recover a money judgment against the James Noel Flying Service, Inc. (hereafter referred to as Noel) and its insurer, Ranger Insurance Company, for damages incurred when plaintiffs’ airplane was stolen and wrecked by one of Noel’s part-time employees. Noel is the fixed base operator that undertook to store and service plaintiffs’ airplane at its hangar facilities located at the Abbeville Municipal Airport. Plaintiffs, in their petition, allege negligence on the part of Noel in failing to safeguard the aircraft and further that Noel breached its duty owed to plaintiffs as a compensated depositary. Defendants filed answers denying liability and alleging contributory negligence and/or assumption of risk on the part of plaintiffs.

After trial on the merits, the trial court found that a “compensated depositary” relationship existed between the parties. The court, after concluding that defendants were not guilty of any acts of negligence, rendered judgment in favor of defendants, ordering plaintiffs’ suit dismissed with prejudice. Plaintiffs have appealed. Defendants have answered the appeal praying that the trial court judgment be modified to delete any finding of a depositary relationship between plaintiffs and defendants.

The principal issues presented on this appear are:

(1) Was Noel a “compensated depositary”; and if so,

(2) Did Noel exonerate itself from fault for the loss of the aircraft?

Plaintiffs are owners in indivisión of a 1961 Cessna 175A aircraft. Pursuant to a verbal agreement with Noel, this particular aircraft had been stored for approximately one year at Noel’s facility located at the Abbeville Municipal Airport. Noel is engaged in the business of providing storage, fuel and various other services for aircraft. The particular arrangement between these parties provided for the storage of plaintiffs’ aircraft in Noel’s hangar, and for certain related services including the checking of fuel and oil, minor cleaning and moving the aircraft in and out of the hangar when requested to do so by plaintiffs. Plaintiffs’ aircraft was not allotted any particular space in the hangar. Noel received the sum of $30.00 per month from plaintiffs for the hangar space. Plaintiffs were also charged for whatever fuel and oil were consumed by their aircraft.

At the time of the theft of plaintiffs’ airplane, there were between eight and twelve aircraft stored in the Noel hangar. Several of these aircraft were of the type that could be started without the use of a key. No additional security provisions were made for these aircraft, all of the aircraft being simply stored together in the hangar. One of the aircraft stored in the hanger was a small training airplane that belonged to Noel. This particular airplane required a key to start it. While Noel’s airplane was thus stored, the key was attached to a clipboard and was kept in the office under lock and key along with the aircraft’s log book.

Plaintiffs’ Cessna aircraft also required a key in order to be started. The record indicates that there was only one key for this aircraft. As a matter of convenience, it was the practice of plaintiffs to leave this key in the aircraft when it was not in use. The key was left either in the ignition switch or hanging on a knob on the instrument panel. Plaintiffs also used this practice with regard to two other aircraft owned by them and stored in the same hangar.

The record indicates that there had never been any discussion between the parties concerning plaintiffs’ leaving the keys in the aircraft while it was not in use. Plaintiffs were never asked to discontinue this practice nor was this procedure encouraged by Noel. This was something left up to the individual owners or pilots. Noel’s employees did not check the aircraft before leaving each day to see if the keys were left in them. There were no signs anywhere on the premises advising that Noel would not be responsible for theft or damage to the airplane. The parties had never discussed which of them would be responsible if an aircraft was stolen.

Normal business hours for the Noel facility were from 7:00 A.M. until around dusk. During these daylight hours, Noel employees were on duty to perform whatever services were necessary including moving the planes in and out of the hangar. However, at dusk, the office and hangar were locked and the Noel employees left for the day. The only security measures then in effect were the fact that the hangar door was locked and that the ramp area was well lighted. There is some evidence that either a sheriff’s deputy or city police officer made a round there at night on his patrol. Noel provided no guards. Plaintiffs were fully aware of the .situation which existed at the facility after the employees left for the day.

As a matter of convenience and to provide the aircraft owners with the necessary 24 hour access to their airplanes, it was the practice of Noel to leave a key to the hangar door on top of an electric meter box located three or four feet from the hangar door. The existence and location of this key was known to all of the aircraft owners that were based there (including plaintiffs) as well as all of Noel’s employees. An owner, who desired access to his aircraft either before or after normal business hours would utilize this key to enter the hangar. He would move the aircraft himself if necessary and would replace this key in its original position upon leaving. This procedure had been adopted soon after the hangar was constructed in 1968 and had been continued without complaint from any of the aircraft owners including plaintiffs who often used this very method to gain access to their aircraft. The location of the key had never been changed since this procedure was started.

On December 31, 1974, plaintiffs’ Cessna aircraft was stolen from the Noel hangar facility by one Richard Cameron, a part-time employee of Noel. Cameron was not on duty at the time he took the aircraft. Cameron, who was not a licensed pilot, was fatally injured when the aircraft crashed at approximately 10:50 P.M. The wreckage of the aircraft was discovered about one and one-half miles southwest of the airport. It is not disputed that the aircraft was totally destroyed. Cameron had worked for Noel on Sundays for approximately three months prior to this incident. As an employee, Cameron had been issued keys to both the office and the hangar. He also knew about the key that was kept on top of the electric meter box. A key to the hangar was also kept in the office.

There is no specific evidence in the record establishing exactly how Richard Cameron entered the hangar at the time of the theft. The record does not reflect any evidence of forced entry. It can reasonably be assumed that Cameron used one of the keys available to him to gain access to plaintiffs’ aircraft.

A deposit is defined as an act by which a person receives the property of another, binding himself to preserve and return it to its owner. LSA-C.C. art. 2926. The deposit is perfected by the delivery of the object, LSA-C.C. art. 2930, and requires the mutual consent of the person making the deposit and the person receiving it. LSA-C.C. art. 2932.

The requisite consent is implied when the owner delivers the object to the depositary who, having knowledge of the delivery, has not refused to receive it. LSA-C.C. art. 2933.

Appellees argue that since plaintiffs were allowed almost unlimited access to the aircraft, and were allowed to move and secure it as they wished, Noel never had custody of the aircraft. In support of this contention, appellees cite the case of Foremost Insurance Company v. Blue Streak Enterprises, Inc., 353 So.2d 430 (La.App. 4th Cir. 1977). The cited case involved a situation where a boat owner paid a monthly fee for the use of a boat slip in a marina. The board was stolen and the owner’s subrogee brought suit against the marina operator. The court characterized the relationship as one of lessor and lessee, finding an absence of delivery of the boat to the marina operator.

We find the cited case inapposite. Although the details of the arrangement between the boat owner and marina operator are not set forth in Foremost, supra, the opinion indicates that the boat owner simple leased a specific designated area in the marina for the privilege of mooring his boat. However, in the instant case, the record clearly reveals that plaintiffs were not allocated any particular space in the hangar for their aircraft. The evidence further supports a conclusion that Noel did exercise a considerable degree of control over plaintiffs’ aircraft. The airplane was moved (usually with a tow bar) by Noel personnel whenever plaintiffs requested that it be brought from the hangar in anticipation of a flight. Presumably, the exact place in the hangar which was occupied by the plaintiffs’ airplane varied according to the number and size of aircraft stored therein at any given time. Noel personnel obviously enjoyed authority to move plaintiffs’ aircraft around to facilitate the moving of other aircraft in and out of the hangar.

The evidence, taken as a whole, convinces us that the trial court properly determined that Noel was a compensated depositary. Segura v. United States Aircraft Insurance Group, 246 S.2d 880 (La.App. 3rd Cir. 1970, writ refused); Coe Oil Service v. Hair, 283 So.2d 734 (La.1973).

Noel’s obligations as a depositary are set forth in LSA-C.C. articles 1908, 2937 and 2938 which state as follows:

“Art. 1908. The obligation of carefully keeping the thing, whether the object of the contract be solely'the utility of one of the parties, or whether its object be their common utility, subjects the person who has the thing in his keeping to take all the care of it that could be expected from a prudent administrator.
This obligation is more or less extended with regard to certain contracts, the effects of which, in this respect, are' explained under their respective titles.
Art. 2937. The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.
Art. 2938. The provision in the preceding article is to be rigorously enforced:
1. Where the deposit has been made by the request of the depositary.
2. If it has been agreed that he shall have a reward for preserving the deposit.
3. If the deposit was made solely for his advantage.
4. If it has been expressly agreed that the depositary should be answerable for all neglects."

The trial judge, in written reasons, found that Noel was not guilty of any act of negligence in leaving the key on the outside meter box since the employee who stole the aircraft had access to other hangar keys by virtue of his employment. The trial judge concluded that Noel had not been guilty of negligence in hiring this particular employee, and that the employee’s action could not have been reasonably foreseen, particularly in view of the fact that he did not know how to fly an airplane.

With respect to the keys which were left in plaintiffs’ aircraft, the trial judge found that this practice was utilized primarily for the convenience of the plaintiffs and that Noel was not negligent in failing to secure the keys at night. The trial judge determined that the practice of Noel of placing the keys to its own aircraft in a safer place at night was not a safety precaution, but rather a check on airplane use and rental by keeping the keys with the aircraft log book.

Appellants contend that the trial court treated this case as a negligence case, instead of presuming negligence on the part of Noel and requiring Noel to exonerate itself from liability. It is unclear whether the trial judge decided this case on the basis of a tort action requiring plaintiffs to establish negligence on the part of defendants rather than under the law of deposit which presumes fault on the part of the depositary and places the burden on him to exonerate himself from negligence. However, in any event, it is clear that the trial judge erred in failing to apply the proper law to the facts as found.

It is well settled in our jurisprudence that once the existence of a depositary relationship is established, as well as loss or damage to the property deposited, a presumption arises that the loss resulted from the depositary’s lack of due care, negligence or fault and the burden is then placed on the depositary to exonerate himself from such negligence or fault. Coe Oil Service Inc. v. Hair, supra; Insured Lloyds v. Liberty Mutual Insurance Co., 295 So.2d 206 (La.App. 3rd Cir. 1974); Soileau v. Ville Platte Rice Dryer, Inc., 322 So.2d 404 (La.App. 3rd Cir. 1975).

As a compensated depositary, Noel’s obligation of safeguarding plaintiffs’ property as well as its burden of exonerating itself from fault must be rigorously enforced. LSA-C.C. art. 2938; Coe Oil Service v. Hair, supra.

Although the depositary is not an insurer of the deposit, Travelers Insurance Co. v. Coleman E. Adler, Inc., 285 So.2d 381 (La.App. 4th Cir. 1973); Segura v. United States Aircraft Insurance Group, supra; Soileau v. Ville Platte Rice Dryer, Inc., supra, the depositary owes a duty to exercise reasonable care and to take precautions against reasonably foreseeable damages to the deposit. Segura v. United States Aircraft Insurance Group, supra. We are of the opinion that theft of an airplane from a place of storage is a reasonably foreseeable occurrence against which a depositary should take adequate and reasonable precautions.

Thus, we must now determine whether Noel has met its heavy burden of exonerating itself from fault for the theft of the aircraft.

In seeking to exonerate itself from liability to plaintiffs for the loss of the aircraft, appellees contend that Noel was not guilty of any negligence in the hiring of Richard Cameron and therefore is not responsible for Cameron’s actions in stealing plaintiffs’ aircraft. Lou-Con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192 (La.App. 4th Cir. 1973, writ refused). Noel also contends that plaintiffs were fully aware of the circumstances under which the aircraft was stored, therefore Noel fulfilled all of its obligations under any contract of deposit with plaintiffs. Noel further alleges that plaintiffs were contributorily negligent and/or assumed the risk of the loss in that they knowingly and voluntarily left the aircraft unlocked with the key inside despite their knowledge of the fact that the hangar was unattended and unguarded after dusk each day. Finally, Noel argues that any contract of deposit existing between the parties terminated at the end of each day when Noel’s employees left the key to the hangar door where it would be available to the aircraft owners. Noel contends that this amounted to a “constructive re-delivery” of the aircraft to plaintiffs. Continental Insurance Company v. Himbert, 37 So.2d 605 (La.App.Orl.1948).

We find no merit in any of the above contentions and ultimately conclude that plaintiffs are entitled to judgment because of Noel’s failure to exonerate itself from fault in the theft of plaintiffs’ plane.

Although the record does not reflect any negligence on the part of Noel in either the hiring or supervision of Cameron, we do not consider this fact sufficient to exonerate Noel from liability. The duty owed by a depositary is more onerous than the duty owed under LSA-C.C. art. 2315 which is simply to exercise reasonable care to refrain from harming others. Segura v. United States Aircraft Insurance Group, supra.

The fact that plaintiffs left the ignition key in their unlocked aircraft with full knowledge that the hangar would be unguarded after dark and that a key to the hangar was readily accessible to a number of people does not relieve Noel of its obligations as a depositary.

While contracts of deposit may be altered by special agreement so as to enlarge or restrict the depositary’s responsibility for loss or damage to the deposit; Norwegian Government Seamen’s Service v. Himbert, 228 So.2d 757 (La.App. 4th Cir. 1969); Soileau v. Ville Platte Rice Dryer, Inc., supra, actual notice of such modifications must be communicated to and accepted by the depositor. Guillot v. Kaplan Farmers Co-op, Inc., 352 So.2d 402 (La.App. 3rd Cir. 1977). In the instant case, Noel did not attempt to contractually limit its responsibility to theft or other loss occurring during specified hours or only to aircraft that were locked or otherwise secured. Having accepted the deposit without limiting its responsibility, Noel cannot now assert that it is free from fault as a compensated depositary because plaintiffs were also aware of certain conditions surrounding the storage of the aircraft. A depositary’s Codal obligation to preserve the object of the deposit cannot be restricted by implication.

Noel is required to use the same diligence in preserving the deposit as he uses in preserving his own property. LSA-C.C. art. 2937; Segura v. United States Aircraft Insurance Group, supra. The record reflects that Noel had established the practice of securing the keys to its aircraft by locking same in the office every night. While there is some evidence that this was done for record-keeping rather than security purposes, this practice nevertheless established a standard of care with respect to aircraft owned by Noel. Leatherman v. Miller’s Mutual Fire Insurance Company of Texas, 297 So.2d 540 (La.App. 3rd Cir. 1974).

The added danger of theft of an unattended, unlocked aircraft with the keys left in it requires an depositary to exercise an even greater degree of care with respect to the deposit. See Kaiser v. Poche, 194 So. 464 (La.App.Orl.1940); Neely v. Tamburello, 187 So.2d 526 (La.App. 4th Cir. 1966).

It is our conclusion that Noel has not met its burden of exonerating itself from negligence or fault for the loss of plaintiffs’ aircraft. Noel produced no direct evidence to prove that the cause of the loss was other than its failure as a depositary to safeguard the property. Coe Oil Service, Inc. v. Hair, supra.

The only remaining issue concerns the amount of damages to which plaintiffs are entitled. In their petition, plaintiffs sought recovery of the value of the aircraft along with damages for inconvenience occasioned by the loss of use of the aircraft. There is evidence in the record to support an award of $6,800.00 for the value of the aircraft. The record reflects that at the time of the loss, a sale of this particular aircraft was then pending, and that plaintiffs had no plans to fly the aircraft again while they still owned it. Under these circumstances, we will not allow any award for loss of use or inconvenience.

For the above and foregoing reasons, the judgment of the district court ordering plaintiffs’ suit dismissed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment in favor of plaintiffs, Byron Grabert, Wiltz Segura and Pat Hebert and against defendants, James Noel Flying Service, Inc. and Ranger Insurance Company in the amount of $6,800.00 with legal interest from date of judicial demand until paid. Defendants are cast for all costs, both at the trial level and on appeal.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Cecil E. BOOTHE, Plaintiff-Appellee-Appellant, v. UNIVERSAL TANK AND IRON WORKS, INC., et al., Defendants-Appellants-Appellees.
    No. 6556.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    Rehearing Denied Aug. 15, 1978.
    Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, for defendants-appellants-appellees.
    Reeves & Owens, Jack F. Owens, Jr., Harrisonburg, for plaintiff-appellee-appel-lant.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

In this suit to recover workmen’s compensation benefits, the threshold issue is whether the trial court erred in refusing to sustain defendants' exception to subject matter jurisdiction.

Plaintiff is apparently a Louisiana domiciliary. On or about September 9, 1974, he called Universal Tank and Iron Works, Inc., at its Indiana office on the telephone from Louisiana. He spoke to Mr. Clyde Burnes, Field Superintendent, in order to solicit employment as a welder. He was informed that the corporation had some openings for welders, and he was told to report to a job site at Mulkeytown, Illinois. The plaintiff reported to the job site and worked for several days. However, on September 23, 1974, he slipped and fell during the assemblage of a water tank. Plaintiff was hospitalized in Illinois for a period and collected compensation benefits under Indiana law. He eventually returned to Louisiana.

Suit was filed in Louisiana on September 22, 1975, in order to collect benefits under the Louisiana Workmen’s Compensation Law and in tort. Made defendants were Universal Tank and Iron Works, Inc., Universal Construction Company, Inc., Aetna Life and Casualty Company, and Lynn Gabriel, the job foreman. Aetna answered the petition, and Universal Tank and Iron Works, Universal Construction Company, and Lynn Gabriel excepted to the personal jurisdiction of the Court, as well as to the sufficiency of service of process.

By joint motion between all the parties, the cause of action in tort was dismissed. In an amendment to the exception of jurisdiction, defendants, this time including Aet-na, raised the exception of subject matter jurisdiction, contending that the contract of employment was not a Louisiana contract.

After a hearing, the trial court rejected the exception of subject matter jurisdiction, finding that the employment contract was a Louisiana contract, and allowed plaintiff’s case to go to trial. In due course, judgment was rendered in favor of plaintiff and against Aetna and Universal Tank and Iron Works for compensation benefits. Plaintiff and defendants have appealed.

We feel that the trial court erred in rejecting defendants’ exception to subject matter jurisdiction. After reviewing the evidence taken in this regard, it is apparent that the contract of employment involved here is not a Louisiana contract.

Two witnesses testified at the hearing on this issue: the Field Superintendent, Clyde W. Burnes, and plaintiff, Cecil Boothe. Burnes testified that on or about September 9, 1974, plaintiff called him at the company’s Indiana office, seeking employment as a welder. He stated that he informed plaintiff of job openings. He suggested that if plaintiff wanted a job, it was necessary to report to the job foreman at the job site in Mulkeytown, Illinois. Although he admitted that his position in the company would allow him to hire and fire, he also stated that it was the job foreman who usually exercised such authority over workers in the field. He further testified that before someone was actually hired, a welding test may be required, and, of course, an application form, a W-4 form, and a state tax form would have to be filled out.

Plaintiff’s testimony was largely consistent with that of Burnes. Plaintiff testified that he did not go into any office located in Louisiana for the job and that he did not receive an application for employment in Louisiana. He stated that the information required on the company’s application was given to the job foreman at the Illinois site and that the formal application was filled out and submitted to the foreman at the Illinois site. He admitted that the telephone call to Mr. Burnes was initiated in Louisiana. He testified that the call was brief. The only information solicited by Burnes, according to plaintiff, was whether plaintiff was a welder. He also stated that all of the work that he did for the company was done in Illinois, from the date of hiring until the date of injury. He admitted that he gleaned from the telephone conversation that his employment was contingent upon going to Illinois, reporting to the job foreman on the job site, and demonstrating the ability to weld. Plaintiff did qualify his testimony, however, by stating that he felt that he had the job when he left Louisiana.

Additionally, we note that there was no evidence introduced at the hearing relative to any operations of the employer in Louisiana.

We think it clear, under the facts and circumstances of this case, that the contract of employment was not a Louisiana contract. Cobb v. International Paper Company, 76 So.2d 460 (La.App.2nd Cir. 1954). The only contact Louisiana has in this entire event is the fact that a Louisiana domiciliary initiated a telephone call from Louisiana to an Indiana employer. There is no indication that either the employer or employee ever intended the contract of employment to be a Louisiana contract. Williams v. Travelers Insurance Company of Hartford, Conn., 19 So.2d 586 (La.App.1st Cir. 1944), writ of error refused, January 15, 1945. There is also no indication that plaintiff would ever have worked in Louisiana for the defendant-employer or that the defendant-employer ever conducted any business activities in Louisiana. As defendants point out, all of the essential ingredients which usually proceed an employment relationship, such as an interview, filling out a job application form, and completing the necessary wage and tax forms, were all performed outside of the state of Louisiana.

Having determined that the contract was not a Louisiana contract, we now move to the effect of this conclusion with reference to defendants' exception to subject matter jurisdiction. Plaintiff sought relief in his petition under the Louisiana Workmen’s Compensation Law. In order for Louisiana’s compensation statutes to be applicable in this case, either the contract of employment must have been entered into in Louisiana, or the accident must have occurred in Louisiana. Neither condition is present here. We also note that defendants properly raised this issue via the declinatory exception to subject matter jurisdiction. E. g., Forman v. Deaton, Inc., 347 So.2d 911 (La.App.3rd Cir. 1977); Woodham v. Travelers Insurance Company, 161 So.2d 368 (La.App.3rd Cir. 1964), writ denied 246 La. 88, 163 So.2d 360 (1964); Cobb v. International Paper Company, supra. Since the contract of employment was entered into outside of Louisiana and the accident occurred outside of Louisiana, we conclude that the trial judge was in error by failing to sustain the exception to subject matter jurisdiction. Accordingly, the judgment will be reversed.

However, simply because this decli-natory exception should have been sustained, it does not necessarily follow that plaintiff’s suit should be dismissed. As we stated in Forman v. Deaton, supra, a ease whose facts are similar to those involved here, the judgment sustaining the exception to jurisdiction should allow plaintiff leave to amend his petition so as to remove the objection, if possible. Only if the grounds for the objection cannot be removed or, if the plaintiff fails to comply with an order requiring such removal within the delay allowed by the court, will the suit be dismissed. La.Code of Civil Procedure Articles 932 and 933. Accordingly, we will remand this case to the trial court for the purpose of allowing plaintiff to amend his petition; and, if such amendment is effected, for further proceedings. As was specified in Forman, the petition should be amended in order to seek recovery under the compensation laws of the appropriate state.

For the above reasons, the judgment of the District Court is reversed and the case is remanded for further proceedings not inconsistent with the views expressed herein. Costs are to await the ultimate outcome of the litigation.

REVERSED AND REMANDED.

WATSON, J., concurs in the result.

      . We will not discuss the merits of these exceptions because no issue of them is raised on appeal, and the actions taken by defendants in requesting relief from the court in various matters would have waived these in any event.

      . This exception was not waived by the filing of prior declinatory exceptions under the express terms of Article 925 of the Louisiana Code of Civil Procedure.

      .Universal Construction Company, Inc., although a related company, was apparently not the employer of plaintiff and was not cast in judgment. Lynn Gabriel, the job foreman, also was not cast in judgment.

      . This hard and fast rule has been modified somewhat by a 1975 amendment to La.R.S. 23:1035.1. We discussed this amendment in Stapleton v. Travelers Insurance Co., 359 So.2d 1051 (La.App. 3rd Cir. 1978). Although in Sta-pleton we found that the amendment liberalized the prior rule, the facts of Stapleton were quite different from those involved here. In any event, we note that the new amendment would have no application here because the accident in question happened before its effective date.


author: CULPEPPER, Judge.

text:
    Joseph CARMOUCHE and Enola Bruno, Plaintiffs and Appellees, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant and Appellant, and Viola Angelle, Willie Angelle, State Farm Mutual Automobile Insurance Company, Morris Bruno, Jr., Defendants and Appellees.
    No. 6562.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    Rehearing Denied Aug. 15, 1978.

      Jack C. Fruge, Sr., Ville Platte, McBride & Brewster, Robert McBride, Lafayette, for defendant and appellant.
    Mouton, Roy, Carmouche, Hailey & Bivens, John K. Hill, Jr., Lafayette, for plaintiffs and appellees.
    Edward D. Rubin, Lafayette, for defendants and appellees.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CULPEPPER, Judge.

This is a wrongful death action by Joseph Carmouche and his wife, Enola Bruno, for the death of their son, who was killed in an automobile accident. Named as defendants are: (1) State of Louisiana, through the Department of Highways; (2) Viola An-gelle, driver of one of the two automobiles involved in the collision, and Willie Angelle, her husband; (3) State Farm Mutual Automobile Insurance Company, liability insurer of the Angelle vehicle; and (4) Morris Bruno, Jr., driver of the automobile in which the decedent was a passenger.

Finding the sole legal cause of the accident to be the negligence of the Highway Department, the trial judge rendered judgment in favor of the plaintiffs and against the Highway Department. He dismissed the third party demands of Morris Bruno, Jr. and Viola Angelle, finding they were both contributorily negligent. The Highway Department appealed. Mr. and Mrs. Angelle and State Farm answered the appeal, seeking recovery on their third party demands for the value of the Angelle automobile in the sum of $14751 The plaintiffs, Mr. and Mrs. Carmouche, did not appeal or answer the appeal, nor did Morris Bruno, Jr.

The substantial issues on appeal are: (1) Was the Highway Department guilty of any negligence which was a legal cause of the accident? (2) Was Morris Bruno, Jr. guilty of any negligence which was a legal cause of the accident? (3) Was Viola An-gelle guilty of any negligence which was a legal cause of the accident?

Louisiana Highway 726 is a .two-lane, blacktopped roadway approximately 20 feet wide. It runs north and south until it nears the junction with “Olivier Road”, at which point State Route 726 turns approximately 90 degrees to the right and thereafter proceeds in an easterly direction. The basic configuration is of a “T” intersection with the east-west portion of Route 726 forming the leg of the “T”. Olivier Road is a parish road. It is a two-lane, blacktopped roadway approximately 18 feet wide. State Route 726 is the through route.

On the day of the accident, the following signs were in place: (1) a stop sign on the right (west) side of Olivier Road directing southbound traffic on that road to stop at the junction with State Route 726; (2) an advance turn sign, consisting of a curve sign indicating a 90 degree curve to the right with a 15 mile per hour advisory speed warning, on each approach of Route 726; (3) a bar with a double arrow facing traffic approaching the intersection from the east.

The accident occurred between 7:30 P.M. and 8:00 P.M. on August 5, 1974. On that day, sunset occurred at 7:59 P.M. Central Daylight Savings Time. It was not yet dark at the time of the accident, and headlights were not needed. Sight clearance and visability at the intersection were good. Motorists proceeding in a westerly direction • on Route 726 toward the curve could see vehicles approaching from the south at least 600 feet prior to the intersection, and motorists approaching in a northerly direction could likewise see motorists proceeding in a westerly direction at least 600 feet from the intersection.

Drivers of both vehicles were thoroughly familiar with the area and the intersection. Mrs. Angelle and her husband owned several acres in this rural area where they grazed cattle. She would drive out several times a week to feed and water the cattle. Bruno’s in-laws lived in the area, and he traveled this road two or three times a week to visit them.

Mrs. Angelle, alone in her 1969 Pontiac Catalina, was approaching the intersection from the east on Route 726. She slowed down to approximately 20 miles per hour to negotiate the curve. Mr. Bruno was proceeding north on Route 726 in his 1968 Pontiac Firebird with Daniel Carmouche his only passenger. The collision occurred after Mrs. Angelle had completed the turn and was about 31 feet south of the center of the intersection. Impact was in Mrs. Angelle’s lane. The Bruno vehicle left skid marks 132 feet and 4 inches long in the right (northbound) lane of traffic. There was a gap between the end of the skid mark in Bruno’s lane and the point of impact in Mrs. Angelle’s lane.

The right front of the Bruno vehicle collided with the right front of the Angelle vehicle. The Angelle vehicle was pushed north by the collision, coming to rest 28 feet and 9 inches from the point of impact. The Bruno vehicle continued north, coming to rest 67 feet from impact in the ditch to the west of the highway. Daniel Carmouche was pronounced dead at the scene. Neither of the drivers was seriously injured. Substantial damage was done to both automobiles.

We quote from the trial judge’s “Reasons for Judgment”:

Based on the foregoing facts established at the trial of this matter, the court is of the opinion that the sole and proximate cause of the accident was the negligence of the Department of Highways in inadequately designing and building the aforementioned intersection and in failing to provide appropriate signs and warnings at the intersection. Due to the layout and design of Louisiana 726 and its junction with Olivier Road, the fact that both are two-lane blacktopped roads and due to the absence of appropriate warnings and signals, the intersection is a patently dangerous and highly deceptive trap for traffic proceeding in a northerly or westerly direction toward the intersection. A motorist proceeding northerly on Louisiana 726 toward the intersection is led to believe that Olivier Road is a continuation of Louisiana 726, while a motorist proceeding westerly toward the intersection would feel that he had the right of way. In both instances, the design of the intersection and lack of signs and warnings serve to deceive advancing motorists.”

The trial judge dismissed the reconven-tional demands of both Mrs. Angelle and Mr. Bruno, finding that they were both contributorily negligent in the following respects:

“Mr. Bruno breached the duty imposed on him by R.S. 32:121 which states that when two vehicles approach an intersection at approximately the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.
“Mrs. Angelle was negligent in that she attempted to make a left turn when such a maneuver could not be made with reasonable safety.”

Having carefully reviewed the entire record, we find that the evidence presented does not reasonably support the trial judge’s conclusions, and that they are manifestly erroneous.

The State Department of Highways is not responsible for every accident which occurs on state highways. This Court, in Doucet v. State, Department of Highways, 309 So.2d 382 (3rd Cir. 1975), discussed the issue:

“The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. It is liable for damages only when the evidence shows (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974); Dupre v. Louisiana Department of Highways, 154 So.2d 579 (La.App. 3 Cir. 1963); Mistich v. Matthaei, 277 So.2d 239 (La.App. 4 Cir. 1973); St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273 (1964).”

The general rule concerning the duty of the highway authorities to post notices and signs warning motorists of dangerous conditions is stated in 60 C.J.S., Motor Vehicles, Section 192:

“The exercise of reasonable care by highway authorities toward motorists may require a placing of signs warning of dangerous conditions, especially where the situation is inherently dangerous, as where there are obstructions or excavations in the way, or the highway terminates abruptly, or there are dangerous curves in the highway, or a bridge has been destroyed, and also where specifically required by statute.
“No hard-and-fast rule can be laid down as to the type of warning which should be given other than that the warning should be of a size and nature commensurate with the danger ahead, and they should be reasonably adequate for the intended purpose. In determining what is reasonable warning, the place at which the danger exists, the nature of the road, and the general situation and circumstances surrounding it are to be taken into consideration, as are also the kind of travel and the speed at which vehicles will probably travel on the road.”

The evidence reveals that Olivier Road is a parish road while Route 726 is a state highway with considerably more traffic. We had the benefit of testimony from two expert traffic engineers. The plaintiffs’ witness, Mr. Evans, testified that he thought the only appropriate signage is to have a stop sign at the leg of the “T”. In this case that would mean placing a stop sign on Route 726 controlling traffic approaching the intersection from the east. He stated this would be the only way to eliminate “all conflict” for motorists approaching the intersection. He did admit that the conditions warranting a stop sign at the leg of this “T” intersection would be different if Olivier Road were merely a private drive, since it would then not have been open to the public. He also noted that signs serve a more important purpose for the stranger, and that, as a general rule, local people who are familiar with the area don’t pay attention to signs.

Testifying as an expert on behalf of the Highway Department was Mr. Lawrence Harry, the District Traffic Engineer for the area in which the accident occurred. He stated that in determining what signage, if any, is called for, he considers the geometries, the sight distances, the accident histories of the location, and the traffic volume. He felt the right of way and signage at the time of the accident was adequate. It was his further opinion that it is safer to leave the right of way on the curve on Route 726, than to force one approach to the curve to stop and look down a parish road with restricted sight distances. Moreover, a person unfamiliar with the area would have come up on the north approach and seen the curve sign, indicating the road curved sharply to the right, and wouldn’t even have known of the extension of the road northward.

This intersection is in a rural area of Lafayette Parish. Signs were posted warning of a 90-degree curve ahead with an advisory speed of 15 miles per hour. Sight distance was good at least as far back as 600 feet from the intersection. We find, based on these facts, the plaintiffs have failed in their burden of proving the State negligent in signing this intersection. As far as negligence in design, no testimony was presented to support this contention. Even Mr. Evans testified that he felt the intersection, while improperly signed, was adequately designed for the conditions.

Even had we found the State negligent in signing the intersection, we would not hold the State liable in this case since both drivers admittedly were very familiar with the area, knew there was a stop sign on Olivier Road, and knew that State Route 726 was the through route. Even if the intersection was inadequately signed, there was no causal relationship between the absence of a stop sign on the eastern approach and the collision between the two vehicles.

We will now consider the conduct of Viola Angelle and Morris Bruno, Jr. Mrs. An-gelle claimed she had slowed to approximately 20 miles per hour to negotiate the curve. This was not disputed by the other witnesses. She said she first noticed the Bruno vehicle when she was several car lengths from the intersection. Believing there would be no problem, she began and completed the left hand turn, continuing south on Route 726 and remaining in her own lane the entire time. Immediately after completing the turn, she looked up to see the Bruno vehicle coming toward her at a “pretty high speed.” Within a split second, the other car had crossed over into her lane, and they collided. It was only an instant before the accident that she realized there was going to be a collision. She does not remember doing anything to try and avoid the accident. The impact was in her lane.

Mrs. Angelle further testified that even if there had been a stop sign controlling her access to the intersection, she would have stopped and then proceeded to turn just as she did since the Bruno vehicle was still 600 feet down the road.

Mr. Bruno testified that he and Car-mouche and a friend driving in a car behind them had just left a bar a couple of miles down the road where they had each had two beers. He testified he was going between 35 and 40 miles per hour just before the accident. An insurance adjuster claimed Mr. Bruno had told him he had been going “about 50”. Plaintiffs’ expert traffic engineer estimated the Bruno vehicle was traveling at least 30 miles per hour at the moment of impact. Considering the length of the skid marks made by the Bruno automobile, Mr. Evans estimated the initial speed before braking to have been 57.3 miles per hour. Using Mr. Evans’ estimate of 30 miles per hour at point of impact as well as his estimate that it would take a vehicle 139 feet to come to a stop if it were traveling at 50 miles per hour, Mr. Harry estimated Bruno’s vehicle was traveling closer to 80 miles per hour before the brakes were first applied.

Mr. Bruno testified that he did not look to the right as he approached the intersection. It was his intention to continue straight on down Olivier Road. He claims he first saw the Angelle vehicle when it was in the curve, and that it had dipped down into his lane. He tried to take evasive action but does not remember slamming on his brakes.

Trooper Menard, the investigating officer, testified the Bruno vehicle had left skid marks 132 feet and 4 inches long in the northbound lane. Then there was a gap before the actual impact, which occurred in the southbound lane of traffic. Trooper Menard testified that there was no physical evidence at the scene which indicated to him that the Angelle vehicle had veered into the left lane of Route 726 at any time. All of the physical evidence indicated that the Bruno vehicle had veered into its opposing or left lane.

We find the conduct of Morris Bruno, Jr. to be the sole legal cause of this accident. State Route 726 was the through route. If Mr. Bruno intended to take Olivier Road, he had the duty to yield to oncoming traffic on Route 726. He would in effect be executing a left turn from the main highway. Yet he approached the intersection at a speed in excess of what was reasonable and did not even look to his right to determine if any vehicles were approaching from the east. He failed to keep his car under control and, as a result, collided with Mrs. Angelle, who had carefully made the turn and was heading straight down Route 726 in her proper lane of traffic.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the defendant-appellant, State of Louisiana, through the Department of Highways, and against the plaintiffs, Joseph Carmouche and Enola Bruno Carmouche, dismissing plaintiffs’ suit as against said defendant. It is further ordered, adjudged and decreed that there be judgment herein in favor of Willie Angelle and Viola Angelle for the sum of $100 and in favor of State Farm Mutual Automobile Insurance Company for the sum of $1375 on their respective third party demands against Morris Bruno, Jr. All other principal and incidental demands are dismissed. All costs in the trial court, as well as the costs of this appeal, are assessed against Morris Bruno, Jr.

REVERSED AND RENDERED.


author: FORET, Judge.

text:
    CITY OF OPELOUSAS, Plaintiff-Appellee, v. Leroy J. SCRANTZ, Defendant-Appellant.
    No. 6569.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    Rehearing Denied Aug. 15, 1978.

      Taylor & Trosclair by Frank P. Trosclair, Jr., Opelousas, for defendant-appellant-ap-pellee.
    Richard B. Millspaugh, Opelousas, for plaintiff-appellee-appellant.
    Harry B. Garland and Salvador L. Diesi, Opelousas, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   FORET, Judge.

The principal issues involved in this case are:

(1) The legality of the dismissal of the plaintiff, a tenured officer of the Opelousas Police Department;

(2) Whether he is estopped by his own laches from contesting the legality of his dismissal, and

(3) Assuming issues 1 and 2 being decided in his favor, the issue of his reinstatement with full pay retroactive to the date of the attempted illegal dismissal.

FACTS AND CHRONOLOGY

By letter dated and received August 28, 1972, from Earl Guidroz, Chief of Police of the Opelousas Police Department, defendant-appellant, Leroy J. Scrantz, a lieutenant with the Opelousas Police Department, was advised that he was being dismissed as of that date from the Opelousas Police Department. (Exhibit S 5, Tr., 479, 484; R. 20)

The Opelousas City Clerk was given a copy of the referred to letter of dismissal, and as a result thereof, he terminated the salary of defendant Scrantz as of August 28, 1972. (Tr., 420, 421)

At the time of the purported dismissal, Scrantz was forty-two (42) years old and had been a police officer since 1962. (Tr., 478)

On August 30, 1972, defendant Scrantz reported to work at his regularly scheduled shift, at which time he was again advised by the officer on duty that he was no longer a police officer and that they had his final check. (Tr., 485)

By letter dated September 6, 1972, defendant Scrantz appealed his attempted dismissal to the Opelousas Fire and Police Civil Service Board. (Tr., 485. R. 21)

Subsequent thereto, the Opelousas Fire and Police Civil Service Board passed a resolution pretermitting the holding of civil service hearings on disciplinary action taken against policemen, against whom criminal charges are pending until the final disposition of the criminal charges. (R. 22, 23)

Between September, 1972 and March 4, 1974, defendant Scrantz spoke to Clinton Beaugh, the police department representative on the Fire and Police Civil Service Board, on at least four (4) to five (5) occasions in an attempt to get the Board to give him a hearing. On these occasions he was told various things, including that the Board was “tied up” with other hearings; that it did not have a quorum because a member was sick, or that a member had resigned or died and had to be replaced, and on some of these occasions he was told by board member Beaugh that his desire for a hearing would be taken up at the Board’s meeting. (Tr., 487-490)

Lt. Scrantz consulted an attorney for the first time three to four days prior to March 4, 1974, and by letter dated March 4, 1974, addressed to the Fire and Police Civil Service Board, he again requested the Board to give him a hearing on his dismissal. (Tr., 493, R. 24)

Having received no reply from the Board to his letter of March 4, 1974, he retained an attorney in June, 1974, and by motion dated July 1, 1974, and filed with the Fire and Police Civil Service Board, defendant Scrantz sought his immediate reinstatement to the Opelousas Police Department on the basis that he was not afforded a hearing within thirty (30) days as required by Article 14, Section 15.1(31) of the Louisiana Constitution of 1921, and on the further basis that he was not dismissed by the Appointing Authority of the City of Opel-ousas as required by the Municipal Fire and Police Civil Service Law. (Tr., 494, R. 26-33)

The Opelousas Fire and Police Civil Service Board, at a meeting held by it on September 6, 1974, ordered the immediate reinstatement of defendant Scrantz on the basis that he was never discharged by the Governing Authority of the City of Opelou-sas as required by Article 14, Section 15.1 of the Louisiana Constitution of 1921. (R. 34, 35)

The City of Opelousas appealed this reinstatement order to the 27th Judicial District Court, and by decision dated March 19, 1975, that court reversed and remanded the matter to the Opelousas Fire and Police Civil Service Board on the grounds that the City of Opelousas had not been given notice of the meeting or hearing which considered and ordered the reinstatement of defendant Scrantz. (R. 4-19, 40, 41)

By letter dated March 26, 1975, the Fire and Police Civil Service Board fixed a hearing date on the Scrantz matter for April 12, 1975, and this hearing date was subsequently continued, over defendant’s objections.

At a meeting held on May 13, 1975, the Fire and Police Civil Service Board, by resolution, decided that when a hearing was held they would hear evidence relating to the merits of the charges contained in the letter of dismissal from the Chief and as to whether or not the charges justified dismissal of defendant Scrantz. (R. 47, 48, 49, 50, 51)

This decision was appealed by defendant Scrantz to the District Court on the grounds that Scrantz was entitled to a hearing on the legality of his dismissal, i. e. whether he was timely granted a hearing and whether his dismissal was initiated by the Governing Authority of the City of Opelousas as required by law. (R. 42-45)

By decision dated November 6, 1975, the district court held that defendant Scrantz was entitled to a hearing by the Board on the legality of his dismissal, and stated in part as follows:

“It is further the ruling of this court that pursuant to Article 14, Section 15.1(c) [15.1(30)(c)j of the Constitution the board may on its own motion or pursuant to notice or request by a qualified elector make an investigation and have a hearing upon the conduct or the performance of Mr. Scranta [sic] as its employee. Those two hearings must be held in the manner provided for under the law. If one is a private hearing and one is not then they shall be held that way. They should not be held simultaneously. I think, however, if one has to be a private hearing and the other a public hearing that they will have to be handled individually that way and not at the same time.” (emphasis supplied.) (R. 53,54)

A hearing was held before the Opelousas Fire and Police Civil Service Board on January 7, 1977, and on January 8, 1977.

At the beginning of the hearing the Fire and Police Civil Service Board instructed defendant that it would hear evidence relating to the legality of defendant’s dismissal as well as relating to the merits of the charges contained in .the letter of dismissal all together in a single public hearing, despite the vigorous objection of defendant and the previous decision of the district court dated November 6, 1975. Defendant requested that he be allowed to file writs of certiorari and mandamus with the courts and the Civil Service Board denied this request. The hearing then proceeded and was concluded in the objected to manner. (Tr., 7-20)

By decision dated January 17, 1977, the Opelousas Fire and Police Civil Service Board stated in part as follows:

“.The Board finds that the evidence is sufficient to establish that Lt. Scrantz was guilty of the violations of R.S. 33:2560A(1), (2) and (6) and that his dismissal from the Opelousas Police Department was for just cause. In view of the fact that the Board finds Lt. Scrantz guilty of violations which warrant his dismissal, the Board feels that Lt. Scrantz is estopped' by laches from taking advantage of fact that he was not legally dismissed. . . . ” (emphasis supplied) (R. 81-84)

Defendant Scrantz appealed the decision of the Fire and Police Civil Service Board to the 27th Judicial District Court. The district court affirmed the decision of the Fire and Police Civil Service Board and this matter is now on appeal before this Court. (R. 56, 102, 108, 105-108)

The parties herein raise no objection to the exercise of jurisdiction by this Court. The district court, however, was unsure of whether it sat as an appellate court or as a court of original jurisdiction in this matter. Therefore, at the outset, we note that this Court has appellate jurisdiction over this matter pursuant to Louisiana Constitution of 1974, Article V, Section 10(A). The issue of this Court’s jurisdiction in these cases is fully discussed in Touchette v. City of Rayne, Municipal Fire & Police Civil Service Board, 321 So.2d 62 (La.App. 3 Cir. 1975).

The scope of this Court’s review, however, is limited to questions of law. There is no jurisdiction to review the finding of facts by the Board, LSA Constitution 1921, Article 14, Section 15(0)(1). The question of whether there is any evidence to justify the Board’s conclusion is a question of law and is properly reviewable by this Court. A review of the record indicates some evidence to support the findings of fact by the Board. Although we may disagree with those findings, we may not substitute our conclusions for those of the Board. Brickman v. N.O. Aviation Board, 236 La. 143, 107 So.2d 422 (1958).

The controlling Civil Service law in this case, La. R.S. 33:2531 et seq., originated from Louisiana Constitution 1921, Article 14, Section 15.1. Accordingly, if there is any conflict, the Constitutional provision must control.

LEGALITY OF DISMISSAL

Only the appointing authority is given the authority to take corrective or disciplinary action against a police civil service employee. Dismissal or discipline by anyone else is illegal. La.Constitution 1921, Art. 14, Section 15.1, Para. 30, R.S. 33:401, 402; Chapman v. Bordelon, 242 La. 637, 138 So.2d 1 (1962). The appointing authority in the instant case is the Mayor and the Board of Aldermen.

The law provides two ways in which disciplinary action against an employee may be initiated. First, the appointing authority has the power to discipline an employee for one of several enumerated reasons: it must furnish the employee and the Civil Service Board a statement in writing of the action and the reason for which it is taken. Second, the Civil Service Board has the power in two situations, discussed infra, to make investigations and render judgment thereon. If this power is utilized, the Board may order the appointing authority to take certain action. These are the only methods by which an employee may be disciplined pursuant to the Civil Service law.

In the instant case, the appellant was dismissed by the Police Chief rather than the appointing authority as required; thus, there is no dispute that the attempted dismissal of the appellant was illegal. Both the Board and the district court recognized the illegality of the attempted dismissal. Given this conclusion, this Court must consider the appellant’s contention that the Board and the district court manifestly erred in ruling that he was barred by laches from asserting his claim.

APPLICABILITY OF LACHES

There is no statutory provision requiring a civil service employee to press a claim for reinstatement within a certain period. There is no fixed rule for determining what constitutes prompt action on the part of the employee to effectively assert his or her rights. Each case must depend upon its own peculiar facts. State Ex Rel. Pepper v. Sewerage and Water Board, 177 La. 740, 149 So. 441 (1933).

Triangle Oil Co. v. City of New Orleans, 5 So.2d 558 (Or.App.1942), at Page 561 said:

In Corpus Juris, Vol. 21, Section 211, at page 210, is found the following:
“Laches in a general sense is the neglect, for an unreasonable and unexplained length of time, under circumstances permitting diligence, to do what in law should have been done. More specifically, it is inexcusable delay in asserting a right; an implied waiver arising from knowledge of existing conditions and an acquiescence in them; * * * ; such delay in enforcing one’s rights as works disadvantage to another.”
In constituting a defense, the doctrine of lack of vigilance is based on, and in part resides in, the injury which might be occasioned, the injustice that might result from the enforcement of long neglected rights, the difficulty and in many instances the impossibility, of ascertaining the truth of matters in controversy and doing justice between the parties, and in part on grounds of public policy, its aim being the discouragement, for the peace and repose of society, of stale and antiquated demands. It is equally well recognized, however, that the doctrine cannot be invoked to defeat justice and will be applied only where the enforcement of the right asserted would work injustice.
There is no absolute rule as to what constitutes latches or staleness of demand, and each case must rest upon its own peculiar circumstances. It must be conceded that latches is not, like fixed periods of prescription, a mere matter of time. It resolves itself, rather, into principally a question of the inequity of permitting the claim to be enforced, an inequity which takes into consideration some intermediate change in conditions.
See also Shirey v. Campbell, 151 So.2d 557 (La.App. 2 Cir. 1963) 5 year lapse of time; Molero v. Bass, 322 So.2d 452 (La.App. 4 Cir. 1975) app. 22 year lapse of time; 30A C.J.S. Equity §§ 115-119.

The district court in the case sub judice relied upon the opinion of the Twenty-Seventh Judicial District Court, Judge Pavy presiding, in Stansbury v. City of Opelousas, which was affirmed by this Court at 341 So.2d 33 (La.App. 3 Cir. 1976) There are, however, important differences between these two cases.

In Stansbury, supra, the employee, also a policeman, was charged by affidavit, with theft, and plead guilty to a reduced charge on misdemeanor theft. He was sentenced to serve six months in prison. In contrast, the charges against the appellant were never brought to trial. Thus, unlike Stans-bury, the appellant would not have been prevented from performing duties of a law enforcement officer because of “serving time for an offense which was his duty as a law enforcer to deter”. 341 So.2d 33, 35.

The employee in Stainsbury was suspended after being charged with theft. He was dismissed only after entering a guilty plea to a lesser crime. The appellant herein was discharged before the charges were ever considered.

More closely related to the issue of laches is the contrasting conduct of the employees in the two cases. This Court agreed with the district court in Stansbury that the actions of appellant 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”, indicated that the plaintiff had consciously abandoned his employment.

In stark contrast to Stansbury, the appellant herein has not sought other employment, nor has he requested the return of his pension fund. Furthermore, unlike Stans-bury, the appellant reported to work on the day regularly scheduled subsequent to his attempted discharge. Even with criminal charges against him apparently pending, he spoke with the police department representative and the Civil Service Board on at least four occasions between his timely appeal of the discharge in September of 1972 and his pressing of the matter by letter on March 4, 1974. On each of these calls he was led to believe that the Board was unable to hear the matter at the time due to internal problems such as inability to have a quorum at meetings. In conclusion, we hold that Stansbury is distinguishable from the instant case.

• For several reasons we find that the appellant had reasonable cause to believe that pursuit of his appeal other than his actual inquiries would have been untimely prior to the time of his motion filed with the Board on- July 1, 1974.

First, the appellant was lulled into a sense of security by the responses of the Board member to his repeated inquiries about his appeal. Thus, the doctrine of laches is inapplicable on this basis as noted in dicta in Fields v. Rapides Parish School Board, 231 La. 914, 93 So.2d 214 (1957).

Second, the Civil Service Board had pre-termitted the holding of Civil Service hearings of appeals taken by policemen against whom criminal charges were pending until the final disposition of the criminal charges (R., pgs. 22, 23). The effect of this action was to render useless any further action by the appellant vis-a-vis the Civil Service Board until the final disposition of the charges against him. His knowledge or lack of knowledge, of the action by the Board is of no consequence.

Furthermore, the pendency of criminal charges against the appellant, notwithstanding the Board’s pretermission, is additional reason for the inapplicability of the doctrine of laches. Hermann v. N.O. Police Dept., on rehearing, 238 La. 81, 113 So.2d 612, 619 (1959); City of New Orleans v. Jackson, 224 La. 771, 70 So.2d 679 (1953).

Finally, we note that in Devillier v. City of Opelousas, 247 So.2d 412 (La.App. 3 Cir. 1971), we held that the plaintiffs were not barred by laches from recovery of back wages which occurred within one year of the filing of suit. There was no pursuit of the claim in the interim. In the instant case, eighteen months elapsed between timely filing of an appeal and the letter to the Board requesting the consideration of the appeal. The appellant, however, made inquiries in the interim. Under the circumstances, we are of the opinion that the period of time in the instant case is as reasonable as one year in Devillier, supra, even recognizing the inherent differences in a claim for back wages and a claim for reinstatement.

In summary, we conclude that the totality of the above factors renders the doctrine of laches inapplicable in the instant case, and that the district court was manifestly erroneous in concluding otherwise.

LEGALITY OF BOARD’S DECISION ON REINSTATEMENT

The appellant also questions the legality of the Civil Service Board’s hearing of January 7 and 8, 1977. At this public hearing the Board considered the legality of the appellant’s dismissal and the merits of the charges contained in the letter of dismissal. The appellant objected on the grounds that the Board was required to hold a private hearing on the merits of the charges against him.

The hearing of the merits of the charges against the appellant was pursuant to the Board’s own motion, as no written request of a qualified elector was filed with the Board. In such a case, the Board must hold a private hearing and investigation. Oliver v. Shreveport Municipal Fire and Police Civil Service Board, 227 La. 1067, 81 So.2d 398 (1954). Baton Rouge Fire Fighters Ass’n v. Fire & Police Civil Service Board, 167 So.2d 482 (La.App. 1 Cir. 1964). The district court recognized this in its decision dated November 6, 1975 (Record, Pg. 53, 54). The legal counsel for the Civil Service Board also recognized this (Rec., Pg. 90). Thus, the Board was in error in investigating and hearing the merits of the charges at a public hearing.

When the Board makes an investigation on its own motion, it may order the appointing authority to take certain action, but it has no authority to act directly vis-a-vis the employee. There was no such order in the instant case. The Board’s determination of the merits of the charges, even if legal, has no effect until such an order is made.

Furthermore, the Board is limited to two holdings in deciding an appeal of an employee pursuant to Article 14, Sec. 15.1, Para. 31. The Board may (1) affirm the action of the appointing authority or (2) order the re-employment of the employee. In the instant case, there was no action by the appointing authority. Thus, the Board was without authority to affirm the attempted dismissal of the appellant.

For the above reasons, we conclude that the judgment of the Civil Service Board, dated January 17,1977, is null. The district court’s affirmance was manifestly erroneous.

Until there is a lawful dismissal for cause, a civil servant is legally entitled to recognition of his status as such with corresponding rights to the economic benefits flowing from such employment. State v. Heard, 228 La. 1078, 84 So.2d 827 (1955). Thus, the appellant is entitled to reinstatement and full compensation from the date of his attempted dismissal.

The judgment of the district court is reversed, and judgment is hereby rendered in favor of Leroy J. Scrantz and against the City of Opelousas, ordering the City of Opelousas to reinstate Scrantz to his rank and status as of August 28, 1972, with full pay and emoluments of his office retroactive to that date.

Costs of this appeal, as well as those in the trial court, are assessed against the City of Opelousas, insofar as the City is liable for costs under R.S. 13:4521.

REVERSED AND RENDERED.


text:
    Mrs. Evelyn CASEY, Plaintiff-Appellee, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
    No. 6589.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 1978.
    Rehearing Denied Aug. 15, 1978.

      Raggio, Farrar, Cappel & Chozen, R. W. Farrar, Jr., Lake Charles, for defendant-appellant.
    Baggett, McCall, Singleton & Ranier by Robert C. McCall, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This case involves a suit brought by a widow to collect death benefits for the death of her husband, George R. Casey, who was insured by a group insurance policy issued by defendant, Prudential Insurance Company.

There is no factual dispute. The case was tried on a joint stipulation of fact, which we quote, in part, as follows:

“[Pjlaintiff is the widow of George R. Casey, who died in St. Patricks Hospital at Lake Charles, Louisiana on July 13, 1973 at approximately 10:45 a. m. On and before June 11, 1973, decedent had been employed as a truck driver by Diversified Auto Freight, Inc., Lake Charles, Louisiana, and, during the course of his employment, had a group insurance policy with Prudential Insurance Company of America providing, among other benefits, life insurance coverage on him in the amount of $7,500.00 with Evelyn Casey as beneficiary subject to its terms, conditions and limitations. The said employment by Diversified Auto Freight, Inc. terminated as of June 11, 1973.
The monthly premium for the coverage afforded George R. Casey under the policy issued by Prudential Insurance Company of America was prorated, and paid for, as follows:
COVERAGE MONTHLY PREMIUM PAID BY EMPLOYEE PAID BY EMPLOYER
$ 3.68 Life Insurance $ 3.68 o
2.13 Weekly Income 3.15 (N o
11.19 Employee Medical Care 11.19 o
Dependant Medical Care 20.80 o O co O CM
Long Term Disability 1.70 o O r-i — i
TOTAL $40.52 $23.52 $17.00
This premium was paid on a quarterly basis, in advance, by Diversified Auto Freight, Inc. to the W. E. Fowler & Co. Agency, St. Louis, Missouri, who was the representative designated by Prudential Insurance Company of America for the collection of the premium on the herein concerned policy. At the beginning of the next quarterly billing period, a deduction (credit) would be taken for premiums paid on employees who had terminated during the previous quarter.
Thirdly, the premium for the second quarter (April, May and June) of 1973 was paid by Diversified Auto Freight, Inc. to W. E. Fowler & Company Agency on April 30, 1973 and the premium for the third quarter (July, August and September) of 1973 was paid on July 19,1973 with a credit having been given to Diversified Auto Freight, Inc. for the premium collected by reason of the coverage of George R. Casey for the month of June, 1973 when he was shown to have been terminated as of May 31, 1973. Accord-, ingly, the premium due by reason of the coverage by Prudential Insurance Company of America of George R. Casey was initially paid through June 30, 1973 but, by virtue of the credit, the charge made for coverage during the month of June, 1973 was returned to Diversified Auto Freight, Inc.
Fourthly, the premiums paid by the employee, George R. Casey, was deducted from his pay check with the last deduction being from the check of June 11, 1973, which deduction was in the amount of $23.82 and represented payment of the premiums to be paid by the decedent for a period of one month. This premium has never been returned to the decedent, his heirs, and/or his widow.
Finally, proof of claim was submitted by plaintiff and was being processed by Prudential Insurance Company of America on or before September 28, 1973, but said claim was ultimately rejected by the said insurer.”

As a consequence of the claim being rejected, plaintiff, Mrs. Evelyn Casey, widow and beneficiary of the decedent, filed suit on October 7, 1975, in order to recover the full amount due under the policy, together with penalties. Judgment was rendered awarding the principal amount, $7,500.00, plus penalties, pursuant to La.R.S. 22:656. Defendant appeals devolutively.

Four errors are specified on appeal, viz.: (1) The trial court erred in finding that a premium had been paid for the month of June; (2) The trial court erred in holding that La.R.S. 22:176 was applicable to this case; (3) The trial court erred in finding that the law of the state of Missouri was not applicable; and (4) The trial court erred in awarding statutory penalties under La. R.S. 22:656.

Prudential’s first contention, with regard to payment of a premium for the month of June, is without merit. It contends that since the premium for decedent’s coverage in the month of June was credited to his employer on July 19, 1973, which was several days after the death, no premium was paid for June; hence, the employee was not covered.

We think it almost too elementary to state, but will do so because the argument is raised, that an insurer, who issues a contract of life insurance, cannot unilaterally terminate coverage for no reason other than simply paying the premium back, after the covered individual has died.

Having determined that a premium was paid, we reach the question of the effect of termination of employment in relation to coverage under the policy. This involves defendant’s second contention concerning the applicability of La.R.S. 22:176.

The policy in question provides:

“E. TERMINATION OF EMPLOYEE INSURANCE
The Employee Insurance of an Employee under a coverage will automatically terminate when:
(1) he ceases to be a member of the coverage classes for the insurance because of termination of employment (described below) or for any other reason, or
(2) his class is no longer included in the coverage classes for the insurance, or
(3) the provisions of the Group Policy for the insurance terminate, or
(4) if the insurance is contributory, any contribution required of him for any insurance under the Group Policy is not made when due.
Termination of Employment — For insurance purposes, an Employee’s employment will be considered to terminate when he is no longer actively engaged in work on a full-time basis for the Employer. However, if absence from such full-time work is then of a type set forth in the Coverage Schedule for the insurance, the Policyholder may, without discrimination among persons in like circumstances, consider the Employee as not having terminated his employment for insurance purposes and, while such absence is of any such type, as continuing to be a member of the coverage classes for the insurance up to any applicable time limit in the Schedule.”

Under the policy, coverage terminates when employment is terminated. Under its definition for termination of employment, the decedent would be considered to have terminated his employment on June 11, 1973, since his absence from full time work was not “of a type set forth in the Coverage Schedule for the insurance.” Hence, under the policy, coverage also would have terminated on June 11, 1973. However, La.R.S. 22:176 provides, in pertinent part:

“Each policy of group life insurance as defined in R.S. 22:175 shall contain in substance the following provisions or, at the option of the insurer, provisions which in the opinion of the commissioner of insurance are not less favorable to the policyholder,
(9) Continuation to end of premium period: A provision, . . that the termination of the employment of any employee or the membership of a member, shall not terminate the insurance of such employee or member under the group policy, until the expiration of such period for which the premium for such employee, or member, has been paid, not exceeding thirty-one days.”

Under the statute, as a minimum requirement, the policy must provide that insurance coverage will continue after termination of employment until the end of the premium period, not exceeding thirty-one days. We feel that since the policy in question afforded protection less than the minimum required by Louisiana law, the statutory provision must prevail over that stated in the policy. Although insurers are free to limit their liability and may generally impose whatever conditions they please upon their obligations, these limitations and conditions cannot conflict with statutes and public policy. Graham v. American Casualty Company of Reading, Pennsylvania, 261 La. 85, 259 So.2d 22 (1972); Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972); Guillot v. Travelers Indemnity Co., 338 So.2d 334 (La.App. 3rd Cir. 1976), writ dismissed, 341 So.2d 408 (La.1977). Thus the decedent in this case was fully covered for death benefits through June of 1973.

However, since the decedent died on July 13, 1973, we must determine whether there is a basis for allowing the beneficiary to collect after coverage had expired. Turning to the policy in question, we find the following provisions:

“A. DEATH BENEFIT WHILE A COVERED INDIVIDUAL.
If the Employee dies while a covered individual, the amount of his insurance under this Coverage is payable when Prudential receives due written proof of death.
B. DEATH BENEFIT DURING CONVERSION PERIOD.
This benefit is payable if the Employee dies within thirty-one days after he ceased to be a covered individual and while entitled (under Section D) to a conversion of his insurance under this Coverage to an individual policy.
An amount equal to that which might have been issued under the individual policy is payable under the Group Policy when Prudential receives due written proof of death, whether or not the Employee applied for conversion.
D. CONVERSION PRIVILEGE.
An Employee ceasing to be a covered individual may convert his insurance under this coverage to an individual policy of life insurance, without evidence of in-surability, if he then ceases to be insured for term life insurance under the Group Policy by reason of—
(1) termination of his membership in the classes eligible for such insurance or
(2) termination, by amendment or otherwise, of the provisions for such insurance as to the eligible class of which he is a member, provided that at the date of such termination he has been so insured under such provisions (or under such provisions and any Prudential rider or group policy replaced by such provision) for at least five years prior to such termination date.
Any such conversion shall be subject to the remainder of this Section. Availability: The individual policy will be issued only if written application and the first premium payment for it are made to Prudential within thirty-one days after such cessation.”

Applying these provisions to the chronology of this case, we find that the death benefit was still payable at the time of decedent’s death. The employee was discharged from employment on June 11, 1973. He remained a covered individual through the end of the premium period on June 30, 1973. At' this time, he became eligible to convert the group coverage to an individual policy. This eligibility continued, by the express provisions of the policy, for thirty-one days after the employee ceased to be a covered individual, viz., July 31, 1973. Since the death on July 13,1973, fell within thirty-one days after the employee ceased to be a covered individual and within the period in which the employee would have been entitled to convert to an individual policy, the death benefit was payable under Section B to the beneficiary, plaintiff herein.

Defendant’s third contention, concerning application of Missouri law, was first raised in his motion for a new trial, which was denied. It is reurged on appeal. Defendant gives the following reasons: The policy was executed in the state of Missouri; premiums were paid to the defendant’s agent, the W. E. Fowler & Company Agency, in Missouri; and the policy provides that the law of Missouri should apply.

We think that the law of Louisiana, rather than the law of Missouri, is applicable to this case. We adopt with approval the written reasons of the trial judge for his denial of a new trial, relevant on this point:

“LSA-R.S. 22:629 provides that:
‘A. No insurance contract delivered or issued for delivery in this state and covering subjects located, resident, or to be performed in this state, shall contain any condition, stipulation, or agreement:
(1) Requiring it to be construed according to the laws of any other state or country except as necessary to meet the requirements of the motor vehicle financial responsibility laws of such other state or country; or
(2) Depriving the courts of this state of the jurisdiction of action against the insurer; or’
The case was submitted by a joint stipulation of fact wherein it was stipulated as follows:
‘b) Exhibit 2. Group Insurance Certificate issued by The Prudential Insurance Company to George Roy Casey under its Group Policy GM — 20401;
c) Exhibit 3. Group Insurance Policy issued by The Prudential Insurance Company of America to Central America Automobile Dealers Insurance Trust, which included Diversified Auto Freight, Inc., Lake Charles, Louisiana, being its Group Policy No. GM—20401;’
It was stipulated that the policy issued to Central America Automobile Dealers Insurance Trust, which issuance included Diversified Auto Freight, Inc., Lake Charles, Louisiana. Further, George Casey, of Lake Charles, Louisiana, was employed by Diversified Auto Freight, Inc. of Lake Charles at the time of his death.The certificate was issued by Prudential to Casey
Under the provisions of LSA-R.S. 22:629, the stipulation and the circumstances existing, the law of Louisiana shall be applied to the insurance contract in dispute, even though the policy provides otherwise.”

Defendant’s fourth and final contention is that penalties were improperly awarded. We feel, as did the trial judge, that the insurer failed to give effect to the clear provisions of La.R.S. 22:176(9) and was therefore liable for the six percent (6%) penalties provided for by La.R.S. 22:656.

Considering the fact that its own policy provided for payment of death benefits within thirty-one days after coverage ceased, and the fact that the insurer should have known that decedent was covered through June, we do not feel that the insurer had just cause to refuse payment. See Rushing v. American Income Insurance Company, 274 So.2d 458 (La.App. 3rd Cir. 1973); West v. Lincoln Income Life Insurance Company, 239 So.2d 379 (La.App. 4th Cir. 1970); Albert v. Cuna Mutual Insurance Society, 255 So.2d 170 (La.App. 3rd Cir. 1971). See also Reichert v. Continental Insurance Company, 290 So.2d 730 (La.App. 1st Cir. 1974), writ denied 294 So.2d 545 (La.1974) (Penalty provisions provided for by La.R.S. 22:656, 657, and 658, have common purpose and should be interpreted similarly.).

For the above reasons the judgment of the District Court is affirmed at appellant’s costs.

AFFIRMED.

      . We think it interesting to note that credit for the June premium originally arose out of an error. The Quarterly Billing Statement for Diversified issued by Prudential’s billing agent in St. Louis, Missouri, stated that no credit was to be given for employees who terminate employment in the third month of a quarter. The credit was given in this case, as stated in the stipulation of facts, because the decedent was erroneously shown to have been terminated from employment on May 31, 1973, instead of the correct date, June 11, 1973.


author: JONES, Justice. TORBERT, Chief Justice

text:
    Ronald E. BURKETT v. Bernard L. ADAMS.
    77-60.
    Supreme Court of Alabama.
    June 9, 1978.
    Rehearing Denied July 28, 1978.
    Curtis 0. Liles, III, Birmingham, for appellant.
    Albert P. Brewer and John M. Bolton, III, Montgomery, for appellee.
   JONES, Justice.

This appeal arises from a judgment holding that a contract containing a non-competition clause was valid and enforceable, and that payments were due pursuant to the agreement. We reverse and remand.

The undisputed facts, stipulated at trial, indicate that on February 1, 1973, Appellee, Bernard L. Adams, was employed by Appellant Ronald E. Burkett, as a public accountant. Thereafter, on March 14,1973, Adams and Burkett entered into two agreements for the sale of Adams’ accounting business and the sale and/or lease of several assets of that business, including its good will. Contained within one of these agreements was a provision that, upon Adams’ termination of employment, he would not compete with Burkett and would recommend Burk-ett to his former clients. In consideration of this agreement, Burkett employed Adams and agreed to pay certain sums after termination of his employment. Burkett’s contract to purchase certain of the physical assets of Adams’ business is not in dispute.

Adams voluntarily terminated the employment effective August 11,1973. Burk-ett, in compliance with the contract, paid several installments on the purchase price. After Adams prepared five 1974 income tax returns for former clients in the area, however, Burkett discontinued his payments. Adams received no payments for the returns he prepared and expects no such remuneration.

The peculiar posture of this action is apparent when it is understood that Adams filed suit to enforce the contract and recover sums due thereunder. It is Burkett who asserts the invalidity of the contract because it violates Tit. 9, § 22, Code, and is void as a restraint on trade. In support of this contention, he argues that a public accountant is a professional and, as such, is not included within the exceptions stated in Tit. 9, § 23, Code. Therefore, the contract would be covered by § 22 and would be void.

The primary question which we must address, then, is whether the practice of “public accounting” is a “profession” as that term is understood in the law. It appears this is a question of first impression and authorities from other jurisdictions are of little help because our statutes in this regard are, to a certain extent, unique.

It is well settled that contracts in restraint of trade are looked upon with disfavor. Associated Surgeons, P. A. v. Watwood, 295 Ala. 229, 326 So.2d 721 (1976); Mason Corp. v. Kennedy, 286 Ala. 639, 244 So.2d 585 (1971); and Hill v. Rice, 259 Ala. 587, 67 So.2d 789 (1953). Furthermore, even a specific covenant not to compete in a profession, trade, or business is void except within the limitations imposed by Tit. 9, §§ 23 and 24, Code. Joseph v. Hopkins, 276 Ala. 18, 158 So.2d 660 (1963). Because the term “profession” is not included within §§ 23 and 24, a contract restraining the practice of a profession is void under § 22. Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968). Thus, should we determine that the practice of public accounting is a profession, the contract presently under consideration must be held void.

We have previously held that the practice of accounting by a certified public accountant is a profession. Gant v. Warr, 286 Ala. 387, 240 So.2d 353 (1970). This is not necessarily controlling here, however, because the question here presented concerns a “public accountant” — not a C.P.A.

The record before us discloses no difference in the duties and capabilities between the two occupations. We do note, however, that a C.P.A. obtains this status through certification by the Alabama State Board of Public Accountancy. See Tit. 46, §§ 7(1), et seq., Code. Under the law when the contract took effect, however, no such provision was made as to public accountants. They did not come under the Board’s supervision until October, 1973. See Tit. 46, § 7(7), Code (1973 Supp.).

Though several, definitions of the term “profession” may be espoused, as stated in Odess, 282 Ala. at 396, 211 So.2d at 812, we can find no better definition than the following observation of the late Dean Roscoe Pound:

“There is much more in a profession than a traditionally dignified calling.
“The term refers to a. group of men pursuing a learned art as a common calling in the spirit of public service — no less a public service because it may incidentally be a means of livelihood. Pursuit of the learned art is the purpose. Gaining a livelihood is incidental, whereas, in a business or trade it is the entire purpose . .” Pound, “The Lawyer from Antiquity to Modem Times,” pp. 5-6.

Obviously, too, however, this definition is not dispositive.

In a case dealing with the revocation of a C.P.A.’s certification, we have previously stated:

“The rights of complainant in this case are unlike the rights of a physician, surgeon, dentist, lawyer, or school-teacher to practice their callings or professions. Under the law, they cannot practice without a certificate or license; and, when their license or certificate is revoked, they are thereby prevented from practicing their profession at all. In the case of accountants, however, this is not true. They are not required to obtain a certificate or license to practice their calling, but obtaining the license or certificate is purely voluntary on their part. Nor does the revocation or cancellation of the license or certificate, when once issued, bar or deprive them from further or longer practicing their chosen calling. The license in their case is but a certificate of the board issuing it as to their competency and fitness. It is not at all a requisite to the practice of their calling, though it may be true, and doubtless is, that the certificate of license, being an authoritative recommendation or certification of a legally constituted board as to efficiency and qualifications, has some value.” Lehmann v. State Board of Public Accountancy, 208 Ala. 185, 187, 94 So. 94, 96 (1922).

Though not controlling, the above quote is instructive as to the distinction between a public accountant and a C.P.A. Certainly, a C.P.A. may be entitled, because of such status, to perform services not properly performed by a public accountant. But the close association and similarity of services performed by the two callings indicate that both could, and should, be considered together. Therefore, because we have previously held that the practice of accounting by a C.P.A. was a profession, we see no reason to prevent deeming public accounting likewise a profession. See Gant, supra. As such, the contract here under consideration, because it restricted Appellee’s practice of his chosen profession, is void under Tit. 9, § 22, Code. The Court will not interfere at the suit of either, but the parties are left where they have placed themselves. Booker T. Washington Burial Insurance Co. v. Roberts, 228 Ala. 206, 153 So. 409 (1934).

The judgment of the trial Court is reversed and the cause is remanded.

REVERSED AND REMANDED.

MADDOX and BEATTY, JJ., concur.

TORBERT, C. J., and BLOODWORTH, ALMON and SHORES, JJ., concur specially-

EMBRY, J., dissents.

FAULKNER, J., not sitting.

TORBERT, Chief Justice

(concurring specially):

I concur in the result only because of our previous holdings in Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968), and Gant v. Warr, 286 Ala. 387, 240 So.2d 353 (1970), the latter decision specifically holding that the practice of accounting by Certified Public Accountants is a profession. The majority opinion extends this definition to “public accountants,” reasoning that the record disclosed no difference in the duties and capabilities between the two. Although the majority opinion makes reference to a statutory procedure of certification and licensing, I do not believe this court to be bound by this fact, nor by the mere fact that a particular occupation may be characterized as “professional” in a statute. All occupations seek to improve their standards through licensing and certification procedures, but I do not believe that all would reach the “professional” status insofar as voiding a covenant by a seller of the good will of the business to refrain from competing with his purchaser.

BLOODWORTH, ALMON and SHORES, JJ., concur.

      . Nothing in this opinion is to be understood as affecting the validity of the decree below relating to the sale of Adams’ accounting business.

      . Because this suit arose before the new Code became effective, citations will refer to the pri- or Code. The present Code contains identical provisions in § 8-1-1, Ala.Code (1975).

      . § 34-1-1, et seq., Code (1975).


author: PER CURIAM. SHORES, Justice

text:
    YANCEY & YANCEY CONSTRUCTION CO., INC. v. DeKALB COUNTY COMMISSION et al.
    77-191.
    Supreme Court of Alabama.
    June 30, 1978.
    Robert G. Wilson of Scruggs, Rains & Wilson, Fort Payne, for appellant.
    Patrick H. Tate, Fort Payne, Terry T. Bush, Rainsville, for appellees.
   PER CURIAM.

Plaintiff-appellant brought action to challenge the constitutionality of a coal severance tax levied by the DeKalb County Commission. Its challenge was based upon its contention that Act No. 906, Acts of Alabama 1975, page 1803, approved October 8, 1975, violated Article IV, Section 105 of the Constitution. The trial court held that the act was valid and the plaintiff appealed.

It argues that the local act violates Article IV, Section 105 of the Constitution because a general act embodied in Title 51, § 431(23), Code (now § 40-13-9, Code 1975), levies a coal severance tax statewide and provides that no county shall levy a tax upon the privilege of severing coal in Alabama. Act No. 906 permits the County Commission of DeKalb County to levy a tax on the privilege of severing coal in DeKalb County.

This court recently held in Peddycoart v. City of Birmingham, 354 So.2d 808, 813 (Ala.1978), that:

. . By constitutional definition a general law is one which applies to the whole state and to each county in the state with the same force as though it had been a valid local law from inception. Its passage is none the less based upon local considerations simply because it has a statewide application, and already hav ing that effect, the constitutional framers have prohibited the enactment of a local act when the subject is already subsumed by the general statute.”

That holding, however, was expressly limited to legislation enacted after the date of that opinion:

“. . . Henceforth when at its enactment legislation is local in its application it will be a local act and subject to all of the constitutional qualifications applicable to it. With regard to legislation heretofore enacted, the validity of which is challenged, this Court will apply the rules which it has heretofore applied in similar cases.” (354 So.2d at 814)

We must, therefore, look to rules which were applied to cases such as this prior to Peddycoart. The trial court tested the constitutionality of Act No. 906, supra, by those rules and concluded that it was not violative of Article IY, Section 105 of the Constitution. It noted that the plaintiff’s contention when viewed in light of the language of the Constitution itself was sound; but that, in light of cases from this court construing that section, the constitutionality of the act must be upheld. The trial court correctly read the old cases, which hold that Section 105 does not prohibit local legislation merely because a general law deals with the same matter. In Standard Oil Co. of Kentucky v. Limestone County, 220 Ala. 231, 235, 124 So. 523, 526 (1929), this rule was announced:

“. . . If, in the judgment of the Legislature, local needs demand additional or supplemental laws substantially different from the general law, the Legislature has power to so enact. Courts are charged with the duty to determine whether there is a substantial difference between the general and the local law, but cannot invade the legislative domain to determine whether a county should have a local law substantially different and in addition to the state law. . .”

A local act providing for a coal severance tax in Cullman County was recently challenged on the same grounds asserted here. This court upheld the act in Drummond Co. v. Boswell, 346 So.2d 955 (Ala.1977). This decision preceded Peddycoart and held:

“. . . The test under § 105 is: “ ‘. . . [whether] the object of the local law is to accomplish an end not substantially provided for and effectuated by a general law, notwithstanding there is a general law dealing with the subject or system affected by the local law.’ Polytinsky v. Wilhite, 211 Ala. 94, 99 So. 843 (1924).” (346 So.2d at 957)

The plaintiff also contested the validity of Act No. 667, Acts of Alabama 1976, page 913, approved August 23, 1976, which readopted the substance of Act No. 906 and, in addition, authorized the county commission to require each producer of coal to file a bond guaranteeing payment of the severance tax. It contends that that act, which originated in the Senate, is repugnant to the constitutional requirements that “All bills for raising revenue shall originate in the house of representatives. . . . ” Article IV, Section 70, Constitution 1901. This court has held that that provision of the Constitution refers to bills which levy a tax as a means of collecting revenue. Opinion of the Justices, 259 Ala. 514, 66 So.2d 921 (1953). Act No. 667 does not levy a tax; it merely authorizes the county commission to impose a tax. The Constitution does not require such bills to originate in the House.

Lastly, the plaintiff asserts that the bills are unconstitutional in that the legislature delegated to the county commission authority to fix the amount of the severance tax. It argues that counties have no inherent authority to tax and may do so only as authorized by the legislature. By § 11-3-11, Code 1975, the legislature has delegated to county commissions the authority:

“To levy a general tax, for general county purposes and a special tax, for special county purposes, according to this Code.”

Tested by authority which controls legislation enacted before the Peddycoart decision, neither Act No. 906 nor Act No. 667 violates the Constitution. The judgment of the trial court is, therefore, affirmed.

AFFIRMED.

MADDOX, JONES and BEATTY, JJ., concur.

TORBERT, C. J., and SHORES, J., concur specially.

SHORES, Justice

(concurring specially):

I dissented in Drummond Co. v. Boswell, 346 So.2d 955 (Ala.1977), and only because the rule announced in Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978), was limited to legislation enacted after release of Peddycoart, do I concur here.

TORBERT, C. J., concurs.