author: ELLIS; Judge:

text:
    STATE of Louisiana, in the Interest of Russell GIANGROSSO, Lonnie Gros and Scott Hood.
    No. 11979.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Alan J. Robert, Donaldsonville, Benjamin C. Vega, Donaldsonville, for the minors Russell J. Giangrosso, Lonnie Ray J. Gros and Scott N. Hood.
    Aubert D. Talbot, Dist. Atty., Napoleon-ville, for the State of Louisiana.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS; Judge:

This is a juvenile proceeding, in which three juveniles are charged by petition with forcible rape. Prior to the hearing, counsel for the juveniles wished to take certain depositions, and to have physical examinations made of the alleged victims. After a hearing, the trial court denied the use of discovery on the part of the juveniles. We issued an alternative writ, directing the trial judge to permit the taking of the depositions and to grant the motion for the physical examinations. The trial judge elected the alternative, and the matter is now before us for decision.

In his return to the Court herein, the trial judge said:

“The central issue presented herein is whether discovery procedures in juvenile cases are to be governed by the Code of Civil Procedure or the Code of Criminal Procedure. If the answer is the latter, then clearly the writ issued herein should be denied.
“Because of the absence of jurisprudence and uncertainty of existing laws, the ‘intent of the legislature’ must be examined. “LSA-R.S. 13:1579 under the subheading ‘hearing’ provides that,
‘. . The hearing shall be conducted in accordance with the general rules of procedure used in civil proceedings, . . . ’ (emphasis added)
“LSA-R.S. 13:1579.1 under the subheading ‘evidence ’ provides that,
‘The rules of evidence governed by the Code of Civil Procedure shall be applicable to a proceeding to declare a child delinquent, et seq. . . . ’
“It is submitted that because both these provisions are found under Chapter Six (6) Part III Sub-Part D, entitled hearing, (sic) the reference to the applicability of the Code of Civil Procedure is limited to the hearing phase of the proceeding and does not apply to the pre-hearing phase of discovery. This argument assumes greater force with the recent events which have occurred in the area of juvenile law, namely, the handing down of the recent Supreme Court decision Number 61, 282, State of Louisiana, In the Interest of Andrew Leonard Dino [359 So.2d 586] and the introduction of House Bill number 288 in the regular 1978 legislative session.
“In throwing out the confession of a thirteen year old and in declaring that juveniles are entitled to public trials in the Bino case, the Supreme Court left no doubt that a juvenile proceeding is essentially criminal in nature and must be equipped with all the constitutional and due process safeguards afforded adults. In discussing the public trial aspects of the case, the court stated,
‘A judicial proceeding which may result in the removal of a child from the custody of his parents and in his confinement until the age of twenty-one years is not essentially different from a criminal trial.’ ”
As originally enacted, R.S. 13:1579.1 read: “In the hearing of all cases under this Part, involving petitions of juvenile delinquency or neglect, all facts connected therewith and all surrounding circumstances, including the environment and history of the child, together with any character of evidence, including hearsay evidence and opinion evidence which the court, in its discretion, may deem proper, may be admissible, and the testimony of the probation officer assigned to the case shall be admissible.”

As amended by Act of 1972, it now reads as follows:

“The rules of evidence prevailing in proceedings governed by the Code of Civil Procedure shall be applicable to a proceeding to declare a child delinquent, neglected or dependent, in need of supervision, in need of the protection of the state or abandoned; provided, however, no child shall be adjudged to be delinquent in the absence of proof beyond a reasonable doubt that such condition exists.”

We think that, despite its proximity to R.S. 13:1579, which deals with hearings, the legislature, by using the word “proceeding” instead of “hearing” when amending the law evidenced its intent to have all of the provisions of the Code of Civil Procedure relating to evidence, including the discovery articles, applicable to juvenile delinquency proceedings. We recognize the force of the argument advanced by the trial judge, as well as the administrative difficulties created by the evident inconsistencies between statutory provisions applicable to juvenile proceedings, and constitutional requirements imposed by the jurisprudence. However, we believe that the legislature' intended, in such a case as this, that there be available to juveniles all discovery devices permitted by the Code of Civil Procedure.

The writ issued herein is therefore made peremptory, and it is ordered that the taking of the depositions of the alleged victims and other witnesses be permitted; it is further ordered that the motion to have the alleged victims examined by a physician be granted; and that this case be remanded to the trial court for further proceedings in accordance with law.

Writ made peremptory and case remanded.


source: Caselaw Access Project

author: BLANCHE, Judge.

license: Public Domain

text:
    In the Matter of the Succession of William W. HARLEAUX.
    No. 11514.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Milton Osborne, Jr. and Albert T. Richard, Osborne & Richard, Plaquemine, for succession, appellee.
    Frederick Kroenke, Jr. of McCollister, Belcher, McCleary & Fazio, Baton Rouge, for American Bank and Trust Co., in its capacity as trustee of William W. Harleaux, trust.
    Murphy W. Bell, Baton Rouge, for defendants in rule, appellants.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

This case was remanded to this Court to rule on the merit of the intervenor’s appeal from the judgment of the trial court awarding attorney’s fees and legal interest.

This Court had held that the beneficiaries of a trust were indispensable parties to an action brought against the trust. Succession of Harleaux, 351 So.2d 1267 (La.App. 1st Cir. 1977).

In remanding the case, the Supreme Court stated:

“Rather than reinstate the trial court’s judgment in favor of plaintiff and against the trustee awarding attorney’s fees in the sum of $2,218.30 plus legal interest, we find it necessary to remand the case to the Court of Appeal which because of its disposition of the case did not reach the issue of the propriety of that judgment. That issue is properly presented by the appeal taken by interve-nors. * * * ”

As a footnote to the above statement, the Supreme Court wrote:

“While an intervenor may not retard the progress of a suit by excepting to the form of the proceedings he may, like a person who could intervene [C.C.Pr. Art. 2086], appeal an adverse judgment.”

In view of the fact that in the original rule the trustee was the defendant and made no objection to the proceedings, we are in accord with the trial court judgment which awarded the law firm of Osborne and Richard the sum of $2,218.30 plus legal interest from June 23, 1975, against the American Bank & Trust Company in its capacity as trustee of the William W. Har-leaux trust. Accordingly, we so order this portion of the trial court judgment to be made final.

For these reasons, that portion of the judgment of the trial court awarding attorney’s fees and legal interest is affirmed. All costs are to be taxed equally between appellants, Florence B. Harleaux, William W. Harleaux, Jr., and Linda Harleaux Spottsville, and appellees, Osborne and Richard.

AFFIRMED.


text:
    Lawrence DUET d/b/a Duet’s Moss Company v. SAIA MOTOR FREIGHT LINE, INC., et al.
    No. 12076.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Pugh, Lanier & Pugh, John L. Lanier, Thibodaux, for plaintiff-appellee.
    Waitz & Downer, Huntington B. Downer, Jr., Houma, for defendants-appellants.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Defendant-appellant, Saia Motor Freight Line, Inc., is appealing a judgment in the sum of $2,748.75 for its negligence in connection with the shipment of a cargo of green Spanish moss which it accepted from plaintiff-appellee, Lawrence Duet d/b/a Duet’s Moss Company.

On June 13, 1972, Saia Motor Freight Line, Inc. (hereinafter referred to as “Saia”), took a load of 36,650 pounds of green Spanish moss from Lawrence Duet d/b/a Duet’s Moss Company (hereinafter referred to as “Duet”) at Labadieville, Louisiana, and the load was consigned to Standard Process Laboratories, Inc. (hereinafter referred to as “Standard”), of Brookfield, Wisconsin. Saia delivered the trailer load within hours to Consolidated Freightways Corporation (hereinafter referred to as “Consolidated”) in Houston, Texas. On June 23, 1972, when Consolidated subsequently delivered the moss to Standard, it had spoiled and was unusable by the consignee. Standard had intended to use the moss for vitamins, food concentrates, and chlorophyll through an extrusion process.

Duet filed an action against both Saia and Consolidated for negligence in handling the freight, and it was stipulated that the correct amount of the damages, in the event of recovery, was $5,497.50. Prior to the trial on its merits, Duet effected a. settlement with Consolidated and reserved his rights to proceed against Saia.

It is apparent from the record that uncured, green Spanish moss will deteriorate if not promptly utilized. Thus, the essential issue turns on whether Saia was negligent in handling this type of cargo.

In its brief on appeal Saia assigns three errors on the part of the trial court. The first error alleged is that the trial court did not consider the depositions of N. J. Chauvin, the driver of the Saia truck, and Charles Larose, the employee of Duet who assisted in the loading operations. These witnesses would have purportedly convinced the court that the moss was already spoiling before Saia picked it up and that it was improperly loaded. The trial judge had other convincing evidence on which he could rely to show that the moss was properly loaded and would not have spoiled had Saia been diligent in notifying the connecting carrier of the highly perishable nature of the cargo. We find that the trial judge committed no error in this regard and that he relied on convincing evidence produced in the record at trial.

The second error assigned by Saia is that the trial court erred in failing to find that Saia was not responsible for the delay in shipment caused by Consolidated. We are convinced that Saia did not adequately alert Consolidated concerning the urgency of transporting the cargo with dispatch. The record shows that Saia had a long-time relationship with Duet and was acquainted with the particular characteristics of green Spanish moss and its propensity to spoil. Consolidated was being used by Saia as a transshipper of green Spanish moss for the first time, and we believe there was a duty on Saia to impress this fact upon the connecting carrier. Jesse Ayers, Saia’s terminal manager, testified as follows:

“Q. At the time that you obtained this particular trailer from Consolidated Freightways, did you have any discussion with Consolidated Freight-ways as to their ability to deliver that trailer to Brooksfield [sic], Wisconsin?
“A. No, sir. The only thing we notified Consolidated was we had a load to pick up going there only.” (Record, P- 82)

Also assigned as error is the trial court’s failure to find that the plaintiff Duet was negligent in his actions in failing to notify the carrier of the perishable nature of their cargo and in failing to properly protect the cargo prior to shipment. Here we find no error and find convincing this testimony by Saia’s terminal manager Ayers:

“A. The freight bill has Spanish moss.
“Q. The freight bill has green Spanish moss.
“A. Green Spanish moss.
“Q. How do you explain the difference between the bill of lading and the other?
“A. Well, that, sir, the only way would be if Mr. Duet, or someone else called up to change it after the truck departed his place. That’s the only way it would have been changed.
“Q. So it’s possible, then, Mr. Duet had called you and given someone some instructions about that particular cargo?
“A. Well, sir, it had to be. Otherwise, the freight bill would have stated identical what the bill of lading states.” (Record, p. 81)

Therefore, the record supports the finding that Saia’s personnel were well acquainted with the difference between green Spanish moss, which deteriorates, and black moss, which does not and is shipped in bales. We are convinced that Duet discharged his duty to Saia in notifying it of the nature of the cargo.

As to the allegation that Duet failed to properly protect the cargo prior to shipment, we are unconvinced. The record supports the fact that the green Spanish moss was handled in the same manner as it had been handled prior to previous shipments and that this was the first time that the moss had deteriorated prior to delivery to the consignee.

For the reasons outlined above, we affirm the judgment of the trial court, with costs to be cast to the defendant-appellant.

AFFIRMED.


author: BLANCHE, Judge. CHIASSON, Judge,

text:
    James WHITE, Sr. v. STATE of Louisiana, Through DEPARTMENT OF PUBLIC SAFETY.
    No. 12088.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Brian L. Williams, Baton Rouge, of counsel for plaintiff-appellant James White, Sr.
    James C. Dixon, Baton Rouge, of counsel for defendant-appellee, State of La., etc.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, James White, Sr., is appealing from a trial court judgment which dismissed his petition to set aside the suspension of his motor vehicle operating privileges.

The sole issue is whether or not plaintiff refused to take a test to determine the alcoholic content of his blood after being arrested for driving while intoxicated.

An administrative hearing was held on August 16, 1977, before a Hearing Officer of the Department of Public Safety at plaintiff’s request concerning his alleged refusal to submit to a chemical analysis for the determination of the alcoholic content of his blood. The officer found that all of the provisions set forth under LSA-R.S. 32:661, et seq., were completely satisfied. This statutory provision provides for the revocation of a motor vehicle driver’s license upon refusal to submit to the appropriate test.

The Hearing Officer stated in his findings of fact:

“C. Testimony of Trooper Gill reflects plaintiff refused to submit to the P.E.I. and at no time did plaintiff attempt to take it. Plaintiff, on the other hand, testified that he did attempt to blow in the machine several times and informed the officer he could not blow harder when he was requested to. Plaintiff argues at no time did he refuse — he just could not blow harder due to a medical condition so described in an Affidavit of Dr. Edward J. Herpich and marked into evidence as W-l.” (Record, p. 9)

At the trial in the district court there was conflicting testimony between plaintiff and Trooper Charles R. Gill, who had arrested plaintiff for driving under the influence of alcoholic beverages.

Plaintiff testified as follows:

“ * * * I sat down, I faced another officer inside the van. He was up behind a little glass desk that was in the van. And he lent me a little tube. He said, T want you to blow into this tube.’ I placed the tube in my mouth and I took a breath, I tried to blow into the tube. I blew in and he said, ‘Try it again.’ I put it back in my mouth, took a breath, I blew again. He asked me to try it again. I put it in my mouth, I took a breath, I blew again. And by that time, Officer Gill said, T think I’ll give him a sobriety test.’ He asked me out of the van. * *” (Record, p. 31)

Trooper Gill, under questioning by the trial court, testified:

“Q. No, I’m talking about the breath test.
“A. Yes, sir, he did.
“Q. He refused to do that?
“A. Yes, sir, he did.
“Q. And he kept on refusing until you just finally shut the equipment down and got out of the van; is that right?
“A. Shut the equipment down, but didn’t get out of the van. Then we started the refusal form and he agreed to take the test.
“Q. Did he do it?
“A. No, sir, the machine was set up again, at this time. Then once it was set up again, he refused.
“Q. He refused again?
“A. So then it was shut off this time.
“Q. It’s your testimony that he refused to take the test; is that right?
“A. Yes, sir, it is.”
(Record, p. 57)

Plaintiff submitted a proffer of testimony by Trooper Gill in an attempt to prove that Trooper Gill’s attention was diverted while plaintiff was in the van. The testimony involved the possibility that Trooper Gill could have talked with the operator of a towing vehicle which had come to the scene of arrest to tow away plaintiff’s vehicle. The gist of Trooper Gill’s testimony is that he might have engaged in a conversation with the towing vehicle operator at the rear of the van to the extent that he gave him permission to tow the vehicle but that he did not recall such a conversation.

The trier of fact has broad discretion where there is a conflict of testimony. Our examination of the record gives us no reason to find any abuse of discretion in this case.

For these reasons, we affirm the judgment of the trial court, with costs cast to plaintiff-appellant.

AFFIRMED.

CHIASSON, J., dissents and assigns written reasons.

CHIASSON, Judge,

dissenting:

Rules of evidence and not merely a conflict of testimony are involved in this case.

Plaintiff specifically sought a judicial review under the provisions of La.R.S. 49:964 of the administrative hearing held pursuant to La.R.S. 32:661, et seq.

The hearing to review the administrative suspension of a driver’s license pursuant to the provisions of La.R.S. 32:668 is a civil action amenable to the rules of procedure and proof for such actions; one who asserts a fact must carry the burden of proof of that fact which must be established by a reasonable preponderance of the evidence. Meyer v. State, Dept. of Public Safety Lic. Con., etc., 312 So.2d 289 (La.1975).

The burden of affirmatively proving refusal to submit to the test is initially on the Department (La.R.S. 32:668) and remains with the Department throughout the court hearing. See: Jaubert v. Department of Public Safety, 323 So.2d 212 (La.App. 4th Cir. 1975).

The crucial question presented is whether or not plaintiff attempted to blow into the tube. On this point, the arresting officer, Trooper Gill, testified:

“Q. . . . Are you saying that you are certain that he did not put the tube in his mouth, or that you are not certain?
“A. I’m saying according to the way I remember it, of what I saw, while I was present, at this time, I do not recall having seen him place it in his mouth or blow on it.
“Q. Is there any time when you might not have been in the van, say, when you were talking with somebody else?
“A. Yes, sir, there is a possibility.”
(Underscoring added).
(Record, p. 55).
“Q. So, officer, you recall stopping him. You recall the wrecker driver being there and you recall possibly speaking with the wrecker driver sometime during that test. That’s correct?
“A. I know I did speak to the wrecker driver; exactly the conversation or exactly what time it was, I don’t.”
(Record, p. 56).
Plaintiff on this point testified as follows:
“Q. Did you refuse or were unable to give him an adequate breath sample?
“A. I was unable, I guess; not refuse.
“Q. Did they ever ask you to blow harder?
“A. He asked me to blow harder.
“Q. Who asked you to blow harder?
“A. The officer, not Mr. Gill, the other officer. Mr. Gill was talking to Mr. Cook at the time. Mr. Cook asked Mr. Gill whether to move my car or not. Mr. Gill said, ‘No, don’t move it now.’ ”
(Underscoring added).
(Record, p. 61).

Trooper Gill’s testimony establishes that plaintiff never attempted to blow into the tube in his presence. The evidence further establishes that Trooper Gill was not present during the entire time when attempts were being made to conduct the test. Trooper Diaz who was in charge of conducting the sobriety test was apparently present during the entire time, was not called or subpoenaed as a witness, and did not testify.

“It has long been a rule in Louisiana that the failure of a party to call a witness under his control and who possesses peculiar knowledge essential to that party’s cause creates a presumption that the witness’s testimony will be adverse to that party. Vaughan v. Dowling, 243 La. 390, 144 So.2d 371 (Supreme Court 1962); Walters v. Coen, 228 La. 931, 84 So.2d 464 (Supreme Court 1956); Pearlstine v. Mattes, 223 La. 1032, 67 So.2d 582 (Supreme Court 1953).” Marion v. New Orleans Public Service, Inc. 306 So.2d 758 (La.App. 4th Cir. 1975), writ refused, April 18, 1975.

The Department therefore failed to establish by a preponderance of the evidence that the plaintiff refused to take the sobriety test and the judgment of the trial court should be reversed.

I respectfully dissent.


text:
    Hugh D. STILES v. DEPARTMENT OF PUBLIC SAFETY, DRIVERS’ LICENSE DIVISION.
    No. 12096.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Richard C. Cadwallader, Baton Rouge, for appellant Hugh D. Stiles.
    Howard P. Elliott, Baton Rouge, for ap-pellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Hugh D. Stiles was a permanent classified civil service employee of the State of Louisiana and employed as the Administrator of the Drivers’ License Division of the Department of Public Safety. He had been so employed for almost ten years when he received a seven-page letter dated September 23, 1976, from his supervisor, Leroy S. Havard, stating that his employment was terminated. The letter specified eighteen reasons for his termination. After consideration by the Louisiana Civil Service Commission on appeal, the Commission found that appellant and his superior Leroy S. Havard were totally incapable of working together, that the charges indicated a definite trend of dissension and unwillingness by Stiles to accept orders or suggestions from supervisors. In conclusion, the Commission found that the appointing authority had proven “a sufficient number of charges to justify the conclusions reached in the service ratings and disciplinary actions taken” and denied the appeal.

From this ruling, plaintiff has appealed to this Court under the authority of Article 10, § 8(A) of the Louisiana Constitution of 1974. That section provides that no person who has gained permanent status in the classified state service shall be subjected to disciplinary' action, such as plaintiff’s dismissal, except for cause expressed in writing. It also provides the employee with the right to an appeal before the Commission, and the burden of proof on such an appeal is on the authority to fully support that the dismissal of the employee was for “cause.” A classified employee may be dismissed for cause if the conduct complained of impairs the efficiency of the public service and bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962).

The authorities also hold that the mere fact that a classified employee has disagreements with co-employees or superiors, or that ill feelings arise between the employee and others, or that the employee is unpleasant to work with, or that the employee feels that his superiors are incompetent does not subject the. employee to disciplinary action unless it is shown that such conduct or personality traits produce results detrimental or prejudicial to the efficiency of the public service. Brickman v. New Orleans Aviation Board, 236 La. 143, 107 So.2d 422 (1958).

Our review of the action by the Commission is as previously stated by this Court in Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 (La.App. 1st Cir. 1976), writ denied, 343 So.2d 1078 (La.1977), i. e., that the findings must be supported by sufficient and competent evidence.

The Department of Public Safety made eighteen charges against the plaintiff in the letter of dismissal. When the matter came before the Commission, the Department of Public Safety did not introduce any evidence on Charges 6, 10 and 13. Therefore, this Court, as did the Commission, must review the remaining fifteen charges to determine if they are supported by sufficient and competent evidence and if, in their totality, they are sufficient to justify the dismissal of the employee.

Two of the remaining fifteen charges to be reviewed by this Court involve a suspension. Charge 14 was for prohibited political activity and was sustained by the Commission. Charge 16 was an unappealed suspension for negligence in withholding vital information from his supervisor.

Charge 15 involved an unappealed reprimand for failure to notify driver’s licensing inspectors that they were within an administrative chain of command. Charge 18 referred to an unsatisfactory service rating.

We consider that the mention of the suspensions, reprimand and poor service ratings were proper charges to be included in a letter of dismissal, as they must be given weight in considering the ultimate question of whether or not the employee was dismissed for cause. For example, no one would deny that repeated justified suspensions would meet the general test of dismissal for cause and the particular test that the conduct complained of impairs the efficiency of public service and bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged.

We have considered the remaining eleven charges, i. e., Charges 1-5, 7-9, 11-12 and 17, and the competency of the evidence presented by the Department of Public Safety in connection therewith. Admittedly, some are petty and alone would not justify plaintiff’s dismissal. It was also obvious that somewhere along the line it was decided that the state service would be better off without plaintiff’s services, as a file was kept on any of his activities which would reflect unfavorably on his service as a state employee.

Charge 1 involved an allegation that plaintiff was advised by his supervisor on April 28,1976, that the Valley Park Driver’s License Office was understaffed and that plaintiff was directed to correct the situation but no plans were formulated until July 7, 1976; and we find evidence to support this.

Charge 2 concerned plaintiff’s failure to act in a situation in the Algiers licensing office on June 29, 1976, wherein plaintiff was directed to solve a personnel problem involving insubordination. There was conflicting testimony as to whether plaintiff understood that he had been given an extension in time to carry out his duties, but we must agree with the finding of the Commission that appellant did not sustain the burden of showing that the reason for his failure to comply with his supervisor’s directive was that a time extension was granted.

In Charge 3 plaintiff was charged with failure to properly exercise his supervisory function in dealing with an employee who was consistently lax in submitting his daily remittances. The testimony on this charge was somewhat involved but nevertheless sufficient for us to find no manifest error in the conclusion by the Commission that it was tantamount to inefficiency as an executive.

There was also ample evidence to prove Charge 4 that plaintiff failed to complete the task analyses by September 10, 1976, after having been directed to do so on July 9, 1976. The record shows that plaintiff’s counterparts complied with the order, leading us to believe that the directive was not unreasonable. We do find unacceptable the defense of plaintiff that he had delegated this task to one of his subordinates. We agree with the Commission, which said: “The delegation of a task does not relieve the supervisor of the ultimate responsibility of being sure that the job is completed timely.”

Charge 5 accused plaintiff of using improper procedures to requisition driver’s license forms, and we find that the Commission had sufficient evidence to support this allegation. The record reflects that plaintiff subsequently corrected his requisition procedures, but, in our evaluation, we must consider that this is an example of his conduct impairing the efficiency of the Department.

In Charge 7 we are not particularly impressed with the allegation of a delay concerning a project which plaintiff himself had recommended involving the development of a program for training driver’s license examiners in evaluating the skills of motorcycle operators. Nevertheless, it was proven that after plaintiff initiated the program he delegated the task and neglected to inform his supervisor that it had been delegated. Fundamental to all management systems is the duty of the subordinate to report to his immediate superior any material information.

With respect to Charge 8, we find that plaintiff issued a memorandum to his immediate subordinates stating that an error rate in excess of 10 percent by driver’s license examiners was a completely unacceptable performance standard by such employees. Notwithstanding the fact that some of his employees did not meet this standard, he failed to deny to any employee a merit increase and justified the same on the grounds of a unilateral decision by him that all employees were underpaid. This conduct amounts to no more than his giving merit increases in pay to those employees not entitled thereto and violates the spirit and purpose for which such merit increases were designed. Misuse of merit pay increases, in our opinion, would produce results detrimental or prejudicial to the efficiency of the state civil service.

Charge 9, in essence, stated that the plaintiff was inaccurate and misleading in relaying information from his superior. From the evidence, we view this as a subjective conclusion and believe the appointing authority failed to carry the burden of proof as to this charge. We quote counsel in his brief to the Commission: “This is a charge about as nearly nothing as can be imagined for grown men to argue about.”

In Charge 11 plaintiff was accused of opposing the destruction of “hard copies” of driver’s license applications. The record reveals that plaintiff’s reason for such opposition was his belief that destruction of hard copies was statutorily prohibited. There is ample evidence to show that the plaintiff’s stand was taken in a good faith attempt to prevent the Department from violating a rather clear statement concerning driver’s license applications (LSA-R.S. 32:409). Nevertheless, while pointing out the possible violation in destroying “hard copies,” the plaintiff ended his memorandum with this cooperative language:

“Notwithstanding the information given above, we are waiting to hear from you as to the exact date that you wish us to commence this destruction, in accordance with the instructions in your Memorandum, and will follow your orders as expeditiously as possible.” (Record, p. 164)

In the face of a classified civil servant attempting to point out a possible violation of the state statutes but, nonetheless, expressing a willingness to comply with the directive of a superior, we find no proof to sustain the validity of this charge.

Charge 12 related to an alleged misstatement by plaintiff to subordinates as to the scope of his authority in making appointments of personnel. We differ with the Commission in its conclusion. Our reading of the record leads us to believe that plaintiff’s superior had, in effect, directed that all personnel appointments had to be approved by him. When an employee-applicant had been denied a promotion, plaintiff explained the situation. The employee-applicant discussed the matter with plaintiff’s superior. The truth became evident to the employee-applicant, and he was subsequently appointed to the position he sought. We can find no fault with plaintiff’s telling the truth to the employee-applicant for a promotion and fail to find that this could or should be the cause of any proper complaint against plaintiff.

Lastly, we review Charge 17 that plaintiff was derelict in his duty to dismiss an employee who had taken excessive leaves and allowed a demoralizing personnel situation to deteriorate to the point that his supervisor had to take the necessary action to dismiss the employee. This charge was proven to our complete satisfaction, and we deem it to be of such significance that, standing alone, it could be sufficient cause for plaintiff’s dismissal.

In summary, whether we take the totality of the charges which were proven or those serious, single, isolated charges which were proven by clear, cogent and convincing evidence, we are firmly convinced that not only did the Department of Public Safety meet the constitutional general test of proving that plaintiff should have been dismissed “for cause” but that it met the jurisprudential test of showing that his behavior adversely bore a real and substantial relation to the efficient and orderly operation of the Department.

For the reasons outlined above, we affirm the findings of the Commission, with costs assessed to plaintiff-appellant.

AFFIRMED.


text:
    NATIONAL FOOD STORES OF LOUISIANA, INC. v. Leroy J. CHUSTZ.
    No. 12105.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Greco & Thomas (Stewart M. Thomas), Baton Rouge, Counsel for plaintiff-appellant.

      C. Jerome D’Aquila, New Roads, Counsel for defendant-appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, National Food Stores of Louisiana, Inc., is appealing the dismissal of its suit based upon the ex parte motion of defendant-appellee, Leroy J. Chustz, on the grounds that under LSA-C.C.P. art. 561 an action is abandoned when the parties fail to take any steps in its prosecution or defense in the trial court for a period of five years.

The record shows that on March 21,1972, plaintiff filed suit against defendant. The next entry in the record is in a document styled “Petition and Order to Examine Judgment Debtor,” said petition being filed September 1, 1977, and the order is shown signed the same date.

On October 20, 1977, the following order was issued by the trial court:

“On motion of the defendant, Leroy Chustz, through his undersigned counsel, and on suggesting to the court that this suit is abandoned, since the parties thereto have taken no step in its prosecution or defense since May 21, 1972, and that it should be dismissed, nunc pro tunc, as of May 21, 1977,
“IT IS ORDERED by the Court that this suit is dismissed as of May 21, 1977.” (Record, p. 10)

Subsequent to the dismissal of the suit, plaintiff filed a “Motion to Set Aside Order of Dismissal and to make Executory a Confession of Judgment” wherein plaintiff alleged that following the filing of its petition on May 21, 1972, the parties reached a “transaction” and that the defendant executed a confession of judgment which was recorded in the parish mortgage records. It was further alleged that pursuant to a letter dated November 16, 1972, from defendant’s former counsel it was agreed that the judgment would not be made executory until four and one-half years after its execution. Plaintiff further contended that it never abandoned the litigation but sought to live up to the terms of the confession of judgment and the letter agreement.

The issue in the case revolves around the interpretation of LSA-C.C.P. art. 561 . The crucial words, insofar as the instant case is concerned, are the meaning of “in the trial court” in the first sentence, which reads in its entirety:

“An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years.” (Emphasis added)

The trial court record is void of any entry between March 21, 1972, and September 1, 1977, when plaintiff filed the judgment debtor examination petition. Clearly, therefore, there were no steps in the “prosecution or defense in the trial court for a period of five years.” (Emphasis added) The record being devoid of any entries for in excess of five years, it follows that it became a mere ministerial act of the trial judge to comply with that portion of Article 561 which directs that “on ex parte motion of any party * * * the trial court shall enter a formal order or dismissal as of the date of its abandonment.” (Emphasis added)

Both parties rely on the case of Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975), which discusses the only two exceptions to the Article 561 rule of abandonment:

“As noted in the original comments appended to article 561, two early exceptions to the five-year rule of abandonment contained in article 3519 were recognized: (1) when the failure to prosecute was caused by circumstances beyond plaintiff’s control, and (2) when the defendant waived his right to plead abandonment by taking any action in the case inconsistent with an intent to treat the case as abandoned. See La.Code Civ.P. art. 561, Comment (c) (1960) and authorities cited therein. * * * ” (307 So.2d at 311)

The plaintiff takes the position that the signing and recording of the confession of judgment amounted to being “inconsistent with an intent to treat the case as abandoned.” The defendant takes a contra position and cites from Melancon, supra, the statement:

“ * * * [A]ny action taken by a party that is alleged to be a step * * * must appear in the court record. In this way, examination of the record will reveal the status of the litigation with certainty and without resort to extrinsic evidence. * * *” (307 So.2d at 312)

We find persuasive the defendant’s citation from Melancon, supra, as well as the comments of the redactors of the Louisiana Code of Civil Procedure, who wrote:

“With respect to the exception to the rule of abandonment based on the defendant’s waiver thereof, the point is moot under the above article, as the problem is solved by its broadened language ‘when the parties fail to take any steps in its prosecution or defense ’ for a period of five years. * * * ”

For the reasons explained above, the judgment of the trial court is affirmed, with costs cast to the plaintiff-appellant.

AFFIRMED.

      . LSA-C.C.P. art. 561 provides:
      “An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.
      “An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court, not to be less than one year. As amended Acts 1966, No. 36, § 1.”


author: COVINGTON, Judge.

text:
    MID-STATE HOMES, INC. v. Jackie L. BICE and Debbie C. Bice.
    No. 12077.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Joseph E. Anzalone, Jr., Amite, for plaintiff appellee.
    Jeanne M. Roques, Robert B. Chopin, Sli-dell, for defendants appellants.
    Joseph E. Anzalone, Jr., Amite, for Jim Walter Homes, Inc., third party defendant, appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

Jackie L. Bice and his wife, Debbie C. Bice, defendants, reconvenors and third-party plaintiffs, appealed from the judgment of the trial court which, although it awarded them their primary relief of recission of contract, failed to award them damages for wrongful seizure of their property by one of the appellees, Mid-State Homes, Inc. (Mid-State), and to grant them an award for mental anguish, embarrassment, et cetera, which they claim to have suffered as a result of breach of a building contract by the other appellee, Jim Walter Homes, Inc., (Jim Walter). The appellants also contend that the trial court erred in not awarding them attorney’s fees and in not fixing and taxing as costs the expert witness’s fee. We amend, and affirm as amended.

This suit commenced when Mid-State, claiming to be the holder in due course of a promissory note secured by certain immovable property belonging to the appellants, filed a petition for executory process and obtained an order therefor. Appellants then obtained a temporary restraining order, followed eventually by an injunction, restraining the seizure and sale of the im-movables because the documents relied upon by Mid-State were not in the authentic form necessary for executory process.

Thereupon, Mid-State converted the exec-utory process into an ordinary proceeding. The appellants answered, denying that Mid-State was a holder in due course, because they had not executed the note and mortgage before a notary and two witnesses. They also averred that Jim Walter Homes, Inc., the contractor, had failed to complete the residence under the building contract, and in reconvention demanded $15,000.00 as damages for the wrongful seizure, plus reasonable attorney’s fees therefor. In addition, they joined the contractor as a third-party defendant, asking for alternative forms of relief, such as specific performance of the contract and $25,000.00 as damages for breach of the contract.

The background and the evidence adduced are succinctly set forth in the Reasons for Judgment assigned by the trial judge and which are, in pertinent part, as follows:

“Defendants entered into a building contract with Jim Walter Homes, Inc. for the construction of a home on their property in St. Tammany Parish, Louisiana. In conjunction with this building contract they executed a mortgage and note in favor of Jim Walter dated April 10, 1973 in the amount of $17,946.00 the first installment being due on July 5, 1973. There were extensions until October 3, 1973 at which time the first installment was due. No payments were made.
“The note and mortgage were assigned to plaintiff, Mid-State Homes, Inc. on January 23, 1974. Mid-State is owned by Jim Walter. Due to the fact that Jim Walter owns Mid-State, and the assignment of the note and mortgage was made after the note became delinquent, the Court holds that plaintiff is not a holder in due course. Consequently, the defenses available against Jim Walter are available against the plaintiff.
“The defenses are basically that the building was not completed in accordance with the terms of the contract, and that the construction was not done in a workman-like manner.
“The evidence indicates and Jim Walter admits the following:
“1) That the eaves are shorter than called for in the contract, 9" as opposed to a called for IV2.
2) There is a bad fitting on the kitchen sink.
3) There is a bad fitting on the back door.
4) They attempted to install 6' cabinets where the kitchen had been constructed for 5' cabinets. They tried to cut down the 6' cabinets, but it didn’t work.
“Additionally, the Court finds that:
“1) The floors got wet during construction and have buckled so that they can’t be covered.
2) The windows are in crooked and have paint on outside.
3) Jim Walter entered into an additional agreement calling for: a) three strong backs to be run under the existing floor joists across the middle of the house. This was not done.
4) The house is out of level.
“The defendant never moved into the house and now asks for a complete recission of the sale. Plaintiff claims substantial completion and that the most defendants are entitled to is a credit on the mortgage and note.
“The Court finds a lack of substantial compliance.
“ ‘Substantial performance is said to exist where the house (or other construction) may be used for the purpose intended even though certain defects or omissions in construction exist.’ Neel v. O’Quinn, [La.App.] 313 So.2d 286 at 290.
“Among the factors to be considered in making the determination of whether substantial performance has been achieved are,
“ ‘. . . the extent of the defect or non-performance, the degree to which the purpose of the contract is defeated, the ease of correction, and the use or benefit to the owner of the work performed.’ Neel v. O’Quinn, supra at pg. 290.
“According to the evidence adduced at trial, there are both defects in the material used and non-compliance with the contract provisions. The amount necessary to remedy just the defects that are not in compliance with the contract is approximately $2,000.00. The original building contract was for $8605.00 so that contractual defects amount to approximately 25% of the contract price.
“This alone results in a lack of substantial compliance.
“Additionally, one of the original problems resulted from the contractor allowing the floors to get wet so that they ‘buckled.’ They could not be covered. This in itself would appear to be legitimate reason for defendants not moving into the house. As a result of the failure to occupy, other deterioration has taken place such as the porch rotting. The Court finds that defendants were justified in not occupying the premises and consequently resulting damages are the fault of the plaintiff.
“There is also testimony that the eaves are shorter than called for and the house is out of level. Certainly these corrections could not be made easily, if at all. “Any remedy in this case other than re-cission of the contract for substantial non-performance would be meaningless. The building contract was for $8605.00. However, the mortgage was for $17,-946.00, and defendants, who never occupied the house, would owe this amount plus 6% interest from November 1973, plus 10% attorney fees for a house where reparable defects not in compliance with the contract amount of 25% thereof, not including those such as the eaves which probably cannot be repaired.”

The trial court then signed a judgment nullifying and rescinding the building contract with Jim Walter, decreeing that the act of mortgage be cancelled from the official records by the Clerk of Court for St. Tammany Parish, ordering Mid-State to return the promissory note to the appellants, and ordering the removal of the structure from the appellants’ property within a reasonable time. Mid-State was cast for all costs.

The judgment does not actually dispose of the third-party demand against Jim Walter Homes, Inc., but it appears from the trial judge’s written reasons that he considered the proper relief for the appellants was recission of the contract. Thus, the silence of the judgment with respect to the appellants’ alternative remedies has the effect of denying them.

We agree with the trial court’s judgment insofar as it granted recission of the contract, return of the note, cancellation of the special mortgage and removal of the building from the appellants’ property. However, we think the trial court should have allowed damages for wrongful seizure, damages for mental anguish, et cetera, attorney’s fees, and he also should have fixed the expert witness’s fee.

Our jurisprudence has been consistent in awarding damages, including general damages for embarrassment, inconvenience and worry, for wrongful seizures (whether under executory process or writ of fieri facias). Escat v. National Bank of Commerce in New Orleans, 284 So.2d 832 (La.App. 4 Cir. 1973). Our review of the record convinces us that the appellants have established that they were embarrassed and inconvenienced by the wrongful seizure, and to some extent adversely affected in their credit rating in the community. We will award the appellants the sum of $1,000.00 for this item of damages.

We believe that the law is now established that an attorney’s fee is also a proper item of damages where there has been a wrongful seizure under executory process. Escat v. National Bank of Commerce in New Orleans, supra. The record supports an award of $500.00 as attorney’s fees.

The appellants called an architect, Jamie Gutierrez, as an expert witness. Mr. Gutierrez made a field inspection of the subject structure, reported on the condition of the premises and testified at the trial. The record supports an award of $625.00 as the expert witness’ fee. We will fix it in this amount and tax it as costs.

Finally, the appellants’ claim for damages for mental anguish arising out of the breach of contract by Jim Walter was denied by the trial judge, the judgment being silent in that regard. On appeal, the appellants contend that they are entitled to such damages. We agree. In Jack v. Henry, 128 So.2d 62 (La.App. 1 Cir. 1961), this Court, citing LSA-C.C. art. 1934(3) as its basis, awarded damages for mental anguish, et cetera, in a breach of contract case. We consider the rationale of Jack to be sound, and award the appellants the sum of $1,500.00 for this item of damages. See also Whitener v. Clark, 356 So.2d 1094 (La. App. 3 Cir. 1978).

Therefore, the judgment of the trial court is amended, and as amended is affirmed. We recast the judgment to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the defendants, reconvenors and third-party plaintiffs, Jackie L. Bice and Debbie C. Bice as follows:

(1) Against Jim Walter Homes, Inc.:
a.Nullifying and rescinding the building contract and ordering said defendant to remove, within 45 days of the date of the finality of this judgment, the building placed on the following described property:
A CERTAIN LOT OF GROUND fronting fifty feet (50') on the south side of Home Estate Drive and extending south therefrom 150 feet between equal and parallel lines; and forming the northeast corner of the two and one half (2*4) acres purchased by Richard J. Bice from George C. Foltz by act passed before J. Chas. Collins, Jr., Notary, dated June 29, 1961, recorded in COB 312, folio 661, as a portion of Lot “S” on a survey of Home Estate Acreage by Adlee Orr, Civil Engineer, dated July 6, 1945 and is located in the SWVi of the NWVi of Sec. 33, T. 8 S., R. 14 E., Ninth Ward, St. Tammany Parish, Louisiana. Being a portion of the same property acquired by Richard E. Bice per COB 312 folio 661. Said act recites: “It is further understood and made a part of this Act of Sale is made subject to the restrictions herein and described as follows, which restrictions shall run with and be a part of the title”: (1) Property will be used for residential or estate and/or small farm. (2) Property will be occupied by members of the Caucasian race, (3) Residence shall not be constructed less than seventy five (75) feet from the road. (4) Property shall not be used for any purpose which will mar or destroy the natural beauty or create an unsightly or disorderly scene, such as a junk yard;
b.Awarding plaintiffs $1,500.00 damages for breach of contract, together with legal interest from date of judicial demand.
(2) Against Mid-State Homes, Inc.:
a. Directing it to return to Mr. and Mrs. Bice the $17,946.00 promissory note executed by them on April 10, 1973;
b. Awarding plaintiffs-appellants $500.00 attorney’s fees;
c. Awarding plaintiffs-appellants $1,000.00 for embarrassment and allied mental anguish, together with legal interest from date of judicial demand;
d. Ordering Honorable Lucy Reid Rausch, Clerk of Court, Parish of St. Tammany, Louisiana, to cancel the mortgage recorded at MOB 524, Folio 851 of the records of St. Tammany Parish.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the fee of the expert witness, Mr. Jamie Gutierrez, be fixed at $625.00 and taxed as costs.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all costs are assessed against Mid-State Homes, Inc., and Jim Walter, Inc., in solido.

AMENDED AND AFFIRMED.


author: CHIASSON, Judge.

text:
    Robert B. EASTERLY and Fannie Elizabeth Easterly v. Kenneth B. CARR.
    No. 12085.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      T. Barry Wilkinson, of Glusman, Moore, Lopez & Wilkinson, Port Allen, Counsel for plaintiff appellee.
    Joseph W. Cole, Jr., Port Allen, Counsel for defendant appellant.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Defendant, Kenneth B. Carr, appeals a judgment permanently enjoining him and/or his family, friends, relatives, and all other persons, from riding excessively noisy motorbikes upon his property located on Rosedale Road near Port Allen, Louisiana. The facts giving rise to the case are as follows:

Plaintiffs, Fannie Elizabeth Easterly and Robert B. Easterly, reside approximately one to two miles outside the city limits of Port Allen, Louisiana, on a three acre tract of land off of Rosedale Road, Louisiana Highway 989. The defendant is the owner of a similar tract of land lying to the east, one tract removed from and parallel to the property owned by the plaintiffs. With the exception of an eight stall barn for his horses and a fence around his property, the defendant has no other improvements thereon. The properties of both parties and the surrounding area is essentially a small rural community characterized as “just a group of people with small acreage.” Sometime in the spring of 1977, the defendants two sons, one 11 and one 15 years of age, began riding trail bikes or motorcross motorcycles on their father’s property. The noise and dust produced therefrom greatly disturbed plaintiffs and their family and the sheriff’s department was called in an effort to stop the motorcycle riding. Subsequently, the defendant, Mr. Carr, telephoned plaintiff, Mr. Easterly, to work out an arrangement. The telephone conversation was unproductive and the motorcycle riding continued as it previously had until plaintiffs filed the petition herein for a temporary restraining order and a preliminary and permanent injunction in July of 1977. It is conceded that there are no local ordinances or zoning regulations affecting the use of the property in question.

Finding that plaintiffs were persons of ordinary sensibilities and that the noise produced from the motorcycle riding by the defendant’s sons was unreasonably excessive and disturbing, the trial judge issued a permanent injunction as prayed for.

Defendant’s assignment of errors are:

1. The trial court erred in failing to require the plaintiff to carry the burden of proof as required by law.
2. The trial court erred in granting an injunction which was not justified by the evidence.
3. The trial court erred in enjoining defendant from the use of his property in violation of Articles 667 and 668 of the Louisiana Civil Code.
4. That the injunction issued by the trial court constitutes a taking of property without due process in violation of the State and Federal Constitution.
5. The injunction rendered by the trial court is over broad even to grant the relief prayed for.

No case has been cited to us where an injunction was prayed for simply to stop the riding of trail bikes upon private property.

The obligations of proprietors toward one another are prescribed by La.R.C.C. Articles 666-669. These articles provide:.

“Art. 666. The law imposes upon the proprietors various obligations towards one another, independent of all agreements; and those are the obligations which are prescribed in the following articles.
“Art. 667. Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.
“Art. 668. Although one be not at liberty to make any work by which his neighbor’s buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.
“Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by- such elevation he should darken the lights of his neighbor’s [neighbor’s] house, because this act occasions only an inconvenience, but not a real damage.
“Art. 669. If the works or materials for any manufactory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place.”

“Work” includes activity as well as structure under La.R.C.C. Article 667. Chaney v. Travelers, 259 La. 1, 249 So.2d 181 (1971). And, noise is an activity which can be the subject of abatement in appropriate cases. See: Hobson v. Walker, 41 So.2d 789 (La.App. 2nd Cir. 1949), wherein the court stated:

“It must be conceded that the creation of excessive, unreasonable and disturbing noises, particularly during the night hours, unquestionably constitutes a nuisance, to the abatement of which parties disturbed thereby are entitled. However, it must be borne in mind that noise is not necessarily a nuisance, and a determination of this point can be made only after thorough consideration of all the surrounding circumstances and facts developed in a particular case.
“It is impossible to lay down any hard and fast rule inasmuch as numerous factors and elements must be taken into consideration, among which may be briefly noted the character of the locality, the nature of the noises, and the effect thereof upon persons of ordinary sensibilities. The determination of these points rests upon purely factual issues with .respect to which the plaintiff in an action of this kind must bear the burden of proof.”

The test of the right to an injunction against the maintenance of a nuisance is whether the alleged nuisance produces serious or material discomfort to persons of ordinary sensibilities in a normal state of health. Johnson v. Nora, 87 So.2d 757 (La. App. 2nd Cir. 1956).

Counsel for the defendant contends that the trial judge improperly applied the above-mentioned standard by placing the burden of proof upon him to prove that plaintiffs were not persons of ordinary sensibilities. This contention is predicated upon a statement of the trial judge, in reasons for judgment dictated into the record, that it was not proven that Mrs. Easterly was abnormal. We do not agree with counsel’s contention. Having reviewed the record we find that the trial judge’s statement was in reference to the failure of the defendant to overcome the preponderance of the evidence and that the trial judge understood and applied the proper standard. In addition to the testimony of the plaintiffs and their relatives to the effect that they were persons of ordinary sensibilities and that they were affected by the noise produced by the motorbikes, a neighbor, Mrs. Suzanne Arnold, testified that the noises were also disturbing to her. Although there was testimony from other neighbors to the contrary, the evidence discloses that those neighbors remain indoors most of the time. The evidence further discloses that of all those who reside in the neighborhood, plaintiffs’ residence is situated the closest to where the bike riding activity took place. Furthermore, plaintiffs keep their house open most of the time and they prefer to be outdoors. Because of the close proximity of the properties of parties and the plaintiffs’ lifestyle, they are particularly affected by the noise.

The evidence also indicates that the defendant’s sons rode their bikes at least every other day for hours at a time and that on some occasions as many as four children rode at once. There was testimony that the noise generated by the bikes is a piercing sound similar to that of a power saw with fluctuating sounds, rather than similar to the even sounds of nearby operating farm machinery.

Finally, plaintiffs testified that they cannot escape the noise even when they go inside their home. The noise disrupts their sleep as well as that of their two year old baby and is generally disruptive of the household as a whole. They cannot conduct normal conversation when friends or relatives visit and they become nervous and irritable.

Because of the conflicting testimony in this case and the broad discretion vested in the trier of fact, we find no abuse of discretion by the trial judge who is in a better position to evaluate the conflicting evidence.

The constitutional questions, presented by the defendant for the first time in his brief on this appeal, cannot be considered by this court. A litigant who fails to plead and particularize the question of unconstitutionality in the trial court cannot raise that issue in the appellate court. See: Johnson v. Welsh, 334 So.2d 395 (La.1976).

Finally, defendant contends that the injunction issued by the trial court is overbroad. We agree.

The trial court’s judgment can be interpreted in two ways: (1) It can be interpreted to prohibit the riding of motorcycles on the defendant’s property altogether, because the riding of any motorcycles, in and of itself, creates unreasonably excessive noise or, (2) it can be interpreted to prohibit only the riding of the type of motorcycles which produce unreasonably excessive noise. Since the injunction is directed towards the elimination of unreasonably excessive noise, we find that prohibition of the conduct described by the latter interpretation would be the correct one. Furthermore, inasmuch as he was the only person made a defendant in the suit, the injunction can only be issued against Mr. Kenneth B. Carr.

Since the trial court’s injunction is over-broad in these respects, the judgment of the trial court is amended to prohibit only the defendant, Mr. Kenneth B. Carr, from creating or from allowing others to create unreasonably excessive noise by the riding of unmuffled or insufficiently muffled mo-torcross bikes or trail bikes on his property located off of Rosedale Road near Port Allen, Louisiana, and, as thus amended, the trial court’s judgment is affirmed.

Costs of the appeal are divided equally between the plaintiffs-appellees and the defendant-appellant.

AMENDED AND AFFIRMED.


text:
    Patricia Jarvis von DAMECK et al. v. ST. PAUL FIRE & MARINE INS. CO.
    No. 12091.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Arthur Cobb, Baton Rouge, of counsel for plaintiffs-appellants Patricia Jarvis von Da-meck et al.
    John W. L. Swanner, Baton Rouge, of counsel for defendant-appellee St. Paul Fire & Marine Ins. Co.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This is a wrongful death action brought by the surviving parents and siblings of Sharon Jarvis Cayer against St. Paul Fire & Marine Insurance Company (St. Paul), the liability insurer of her husband, Dr. Louis Cayer.

At approximately 3:00 o’clock P.M. on January 19, 1976, the bodies of Dr. Cayer and his wife, Sharon, were found in the bedroom of their residence in Pineville, Louisiana, by a Rapides Parish Deputy Sheriff. Autopsies revealed that the wife had received three gunshot wounds from 32 caliber bullets in the anterior chest and that the husband had received one gunshot wound from a 32 caliber bullet in the posterior pharynx at the level of the hard palate. The wife’s wounds were located in the following areas, although the order in which they were received was not determined: first, one in the anterior chest in the exact midline and 5.0 cm below the sternal notch; second, one 3.0 cm below the one previously mentioned and 2.0 cm to the left of the midline; third, one at the level of the xi-phoid process and 6.5 cm to the right of the midline.

The circumstances surrounding the deaths indicate an apparent murder-suicide; that having shot his wife with a 32 caliber pistol, Dr. Cayer then took his own life in the same manner. Although the time of the deaths was recorded as both being at 8:00 o’clock P.M., January 18, 1976, on the certificates of death, the autopsy reports listed the time of death of both parties as “unknown”.

Suit was filed by Patricia Jarvis von Da-meck, Cedric Wayne Jarvis and John T. Jarvis, the sister and brothers of Sharon Jarvis Cayer, and by Sammie Sistrunk Jarvis and Cedric Scott Jarvis, Sharon’s mother and father, on April 30, 1976. In response thereto the defendant, St. Paul, filed an answer admitting the existence of certain policies issued by it to Dr. Cayer, but denying liability under the terms of the said policies. The defendant further filed peremptory exceptions of no right of action and no cause of action as to all plaintiffs, which exceptions were referred to the merits.

Finding that Dr. Cayer predeceased his wife, the trial judge overruled the exceptions of no cause of action and no right of action as to the parents on the basis of La.R.C.C. Article 2315. As to the brothers and sister, the exceptions were sustained and their claims were dismissed. The trial judge further found that although the plaintiffs proved that Dr. Cayer was insane at the time he shot his wife, that the defendant had carried its burden of proving that the act of Dr. Cayer was intentional and that the policies issued by the defendant to Dr. Cayer excluded coverage in the case of intentional injuries.

Finally, the trial judge found that it would not make any legal difference whether Dr. Cayer was sane or insane at the time for the following reasons:

“A. If the doctor was sane, his actions were intentional, thereby excluding coverage.
“B. If the doctor was insane, he would be immune from legal liability, ipso facto making his insurer immune.”

Accordingly, judgment was rendered dismissing the claims of plaintiffs.

From said judgment all plaintiffs have appealed devolutively.

Plaintiffs contend that the trial judge erred in the following respects:

1. In finding that an insane person is capable of committing an intentional tort;
2. In following the decision of Yancey v. Maestri, 155 So. 509 (Orl.App.1934) to reach his conclusion that an insane person' will not be held liable for his torts;
3. In finding that a liability insurer is not liable for the torts committed by its insured while insane;
4. In dismissing the claims of the sister and brothers of Sharon Jarvis Cayer.

Plaintiffs first contend that the finding of the trial judge that Dr. Cayer intended to shoot and kill his wife is contrary to the law and evidence inasmuch as the defendant failed to discharge its burden of proving such, and inasmuch as the trial judge expressly found that the plaintiffs met their burden of proving that Dr. Cayer was insane at the time of the shooting.

The law in Louisiana is well settled that all persons are presumed to be sane unless the contrary is affirmatively established. Kalpakis v. Kalpakis, 221 La. 739, 60 So.2d 217 (1952); Succession of Vicknair, 126 So.2d 680 (La.App. 4th Cir. 1961), certio-rari denied. However, to this court’s knowledge a legal standard of insanity, insofar as delictual responsibility is concerned, has never been established by the jurisprudence or laws of the State of Louisiana.

“Insane persons” are defined in La.R.C.C. Article 31 as:

“Persons of insane mind are those who do not enjoy the exercise and use of reason, after they have arrived at the age at which they ought, according to nature, to possess it, whether the defect results from nature or accident. This defect disqualifies those who are subject to it, from contracting any species of engagement, or from managing their own estates, which are for this reason placed under the direction of curators.”

“Insanity” is defined in Black’s Law Dictionary 929 (4th Ed.Rev. 1968), as:

“. . . such a want of reason, memory, and intelligence as prevents a man from comprehending the nature and consequences of his acts or from distinguishing between right and wrong conduct.”

In the recent case of Turner v. Bucher, 308 So.2d 270 (La.1975), the Supreme Court, in discussing the delictual responsibility of minors and insane persons, stated the following:

“. . . (T)he Louisiana and French concepts coincide in holding that nondis-cerning persons do not possess the capability of knowing the consequences of their conduct; they lack the moral guilt usually associated with delictual responsibility and, therefore, they should not be legally liable for acts under an objective standard designed for normal reasoning persons.” (Footnote omitted).

Expert medical testimony as to the mental condition of Dr. Cayer at the time of the murder-suicide was elicited from two psychiatrists — Dr. Curtis A. Steele for plaintiff, and Dr. Francisco A. Silva for defendant. Dr. Cayer had no prior record of mental instability. Neither psychiatrist had ever had the opportunity of examining or talking to Dr. Cayer and their testimony, was based exclusively upon the following: certain writings by Dr. Cayer which were introduced into evidence, the testimony of Dr. Cayer’s in-laws as to his character and certain conduct on the part of Dr. Cayer described as bizarre, and certain stressful situations to which Dr. Cayer was subjected in the months immediately preceding his death.

The writings of Dr. Cayer consist of undated notes written on hospital or medical stationery. They were described by Dr. Steele as “. . . highly disordered notes that had a consistent trend of competitiveness, suspiciousness, macho male supremacy, very disorganized, rambling thoughts on how to dominate and control women, that in themselves are disorganized to the point of sounding psychotic.” Dr. Silva described the notes as evidencing feelings of inadequacy and male chauvinism, and an obsessive preoccupation with women, how to deal with them, and not allowing them to control you.

The testimony of the other witnesses who testified established the following bizarre episodes and stressful situations and/or traumas to which Dr. Cayer was subjected during his lifetime:

1. That when he was sixteen years old, Dr. Cayer’s father died of a heart attack at a time when his mother and sisters were away from home and while he and his father were alone, he being unable to help his father at the time;
2. That Dr. Cayer blamed his mother for his father’s death, and hated her for it;
3. That while a child or a teenager, in a very heavy argument with his sister, Dr. Cayer stabbed her with a pair of scissors near the eye for which she had to have stitches;
4. That after his marriage to Sharon Jarvis, at a social gathering Dr. Cayer was involved in a heated argument with his sister-in-law, and receiving the worst end of the argument, he ranted and raved, ran out, and started kicking and punching his own automobile;
5. That after his marriage and about the same time as the previously related incident while his mother-in-law was visiting with the couple, she heard screaming in the middle of the night, ran out of her room, and found Dr. Cayer standing naked in front of a picture window with the lights on screaming he was superman and super-doctor;
6. That during the month of August, 1975, his wife left him and went home to her mother;
7. That Dr. Cayer carried a gun with him because he thought there were people out to get him;
8. That in November of 1975 he told his mother-in-law that he had gout, that he didn’t want anyone else to know about it, and that if it turned into arthritis he might kill himself;
9. That every year around the anniversary of his father’s death, Dr. Cayer became depressed for a few days;
10. That the day the bodies of Dr. Cayer and his wife were found, January 19, 1976, was the anniversary date of his father’s death;
11. That approximately two weeks prior to his death, Dr. Cayer expressed concern about suffering a diminution of income in the amount of approximately $50,000.00 per year because the hospital where he worked hired its own emergency room doctor;
12. That as a result of the previously mentioned factor, Dr. Cayer cancelled his plans to make a $300,000.00 addition to his own clinic.
13. That a few days after his death, Dr. Cayer was to appear in court as a defendant in his first medical malpractice case;
14. That Dr. Cayer’s body was found in bed completely naked and the body of his wife was found clad only in a short negligee.

Both psychiatrists agreed that in their opinions, based upon the writings alone, Dr. Cayer was a paranoid person. “Paranoia” is defined in Black’s Law Dictionary, id, at pages 934 and 935 as:

“Monomania in general, or the obsession of a delusion or system of delusions which dominate without destroying the mental capacity, leaving the patient sane as to all matters outside their particular range, though subject to perverted ideas, false beliefs, and uncontrollable impulses within that range; and particularly, the form of monomania where the delusion is as to wrongs, injuries, or persecution inflicted upon the patient and his consequently justifiable resentment or revenge. Winters v. State, 61 N.J.L. 613, 41 A. 220; People v. Braun, 158 N.Y. 558, 58 N.E. 529. Paranoia is called by Kraepelin ‘progressive systematized insanity,’ because the delusions of being wronged or of persecution and of excessive self-esteem develop quite slowly, without independent disturbances of emotional life or of the will becoming prominent, and because there occurs regularly a mental working up of the delusion to form a delusionary view of the world, — in fact, a system,— leading to a derangement of the standpoint which the patient takes up towards the events of life.”

Both psychiatrists also agreed, in effect, that while paranoid persons are capable of functioning adequately within certain social ranges, they are not capable of functioning adequately within other social ranges, i. e., within the particular social ranges that are affected by the individual’s paranoid condition. Dr. Steele testified that in his opinion Dr. Cayer was psychotic as well. Dr. Silva deposed that, inasmuch as he had not had the opportunity of examining Dr. Cayer, he could not say to what extent the stresses to which Dr. Cayer was subjected affected him.

Although the testimony of the medical experts is in conflict over whether or not there was sufficient information for them to determine from a medical standpoint the severity of Dr. Cayer’s mental condition at the time of the shootings, the trial judge found that from a legal standpoint, Dr. Cayer was insane at the time.

On the basis of the above evidence and legal definitions, we agree with the trial judge that Dr. Cayer was a paranoid psychotic person. We find that although Dr. Cayer was apparently capable of functioning adequately within certain social ranges, e. g. at work, he was incapable of functioning adequately within other social ranges, i. e., while at home or away from work and, in particular, with women. We further find that the stresses to which he was subjected in the months just prior to his death, caused him, while at home with his wife, to lose the ability to reason and/or understand the nature and consequences of his actions to such a degree that under the law he was legally insane at the time. Accordingly, we find that the trial judge’s conclusion that Dr. Cayer was insane is amply supported by the evidence.

In view of the above jurisprudence and definitions of insanity for civil liability, we find that the trial judge was in error in simultaneously concluding that Dr. Cayer, by his actions, intended to inflict bodily injury. If a person has such a want of reason, memory, and intelligence as prevents him from comprehending the nature and consequences of his acts, he cannot at the same time intentionally inflict injury. Though Dr. Cayer may have had the intent to shoot his- wife, his insanity prevented him from having the requisite intent to inflict injury.

Further, an insurer has the burden of proving its right to urge an exclusion under its policy as a defense. Briley v. Union National Life Insurance Co., 246 So.2d 265 (La.App. 1st Cir. 1971), writ refused. In Written Reasons for Judgment the trial court concluded that the defendant, having proven the act to be intentional, can take advantage of the exclusion. The exclusions in the policies apply “to bodily injury . . which is expected or intended from the standpoint of the insured.” (underscoring added). The only testimony offered to establish that Dr. Cayer intended to inflict injury upon his wife was that of Dr. Steele on cross-examination to the effect that Dr. Cayer probably did intend to injure her. However, this testimony is subject to Dr. Steele’s consistent opinion and belief that Dr. Cayer was not rational and was not capable of cause and effect thinking at the time of the act.

The trial judge’s conclusion was based, in part, also upon the presumption that all persons intend the natural and probable consequences of their acts. Presumptions are consequences which the law or the judge draws from a known fact to a fact unknown. La.R.C.C. Art. 2284. The judge “. . . ought-to admit none but weighty, precise and consistent presumptions.” La.R.C.C. Art. 2288. Objective standards designed for normal reasoning persons should not apply to persons incapable of discernment. See: Turner v. Bucher, supra. The presumption, that one intends the natural and probable consequences of his acts, should be limited to those persons capable of discernment and should not be applied to an insane person.

For the above reasons we find that the trial judge erred in holding that the defendant carried its burden of proof to establish that plaintiffs’ claims came within the exclusionary provisions of its policies.

Plaintiffs next contend that the trial judge erred in following the decision of Yancey v. Maestri, supra, to the effect that an insane person cannot be held liable for his torts, and further in holding that a liability insurer is not liable for the tort committed by its insured while insane.

Even assuming, arguendo, (and without commenting on the continuing validity of the Yancey decision) that an insane person is not liable for his torts, the defense is personal to the insured. Simmons v. Clark, 64 So.2d 520 (La.App. 1st Cir. 1953). Personal defenses are not available to the insurer. Edwards v. Royal Indemnity Co., 182 La. 171, 161 So. 191, (1935); Ruiz v. Clancey, 182 La. 935, 162 So. 734 (1935).

Finally, plaintiffs contend that the trial judge was in error in sustaining the defendant’s exception of no right of action as to the brothers and sister of Sharon Cayer. Since, under La.R.C.C. Article 2315, each of the three separate classes of beneficiaries successively excludes the following class or classes, it is clear that the claim of the parents of Sharon Cayer excludes the claims of her brothers and sister. See: Johnson v. International Insurance Company, 347 So.2d 1279 (La.App. 1st Cir. 1977), writ denied. Accordingly, the brothers and sister have no right of action and the judgment of the trial court in this respect is correct.

In view of our findings heretofore, we turn to a consideration of the defendant’s contention, in brief, that the trial judge was in error in finding that Dr. Cayer predeceased his wife. Defendant submits there is no factual basis for this finding and that it was based solely upon an assumption by the trial judge that Sharon Cayer attempted to crawl out of the bed after Dr. Cayer had administered the instantly fatal shot to himself. The only medical testimony offered to establish the sequence of deaths was that of a pathologist, Dr. Albert L. McQuown, defendant’s expert witness. His testimony was based on a review of the autopsy reports which were prepared by Dr. Tom D. Norman. Dr. McQuown testified that although there was no medical evidence to absolutely state who died first, it was his opinion, based upon his experience, knowledge and the autopsy reports, that Sharon died first.

The factual basis for the trial court’s conclusion is supported by the testimony of the investigating officer, the position of the bodies when discovered, and the photographs of record. Because there is credible evidence to support the finding of the trial court, we find no manifest error in its determination of this issue.

We are therefore of the opinion that the parents are entitled to collect damages for the death of their daughter. Because the record contains all the facts necessary to arrive at the quantum of damages, it is incumbent upon us to make that determination. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

In this respect the record reflects that at the time of her death, Sharon Cayer was 22 years old, married and living away from home with her husband for nearly two years. Nevertheless, there was evidence that Sharon was very close to her parents throughout her lifetime. They devoted much of their time to providing Sharon with a good education and proper upbringing, and they supported her in extracurricular school activities and in church functions. The record further discloses that she returned the love and affection that her parents bestowed upon her by being a model daughter to them. She excelled in her endeavors and was described by her mother as an affectionate child who was “always in the lead.” She was valedictorian of the senior class in high school, president of the Student Council, FHA Girl of the Year, president of the 4-H Club, band mascot, cheerleader, senior maid, active in church functions (church organist for five years), and an active participant in athletic functions.

Finally, the evidence discloses that after her marriage, Sharon remained in close contact with her parents by telephone, letters and frequent visits, despite the fact that they lived some distance away.

While it is most difficult to assess a monetary value to compensate for damages of this nature, we are of the opinion that an award to each parent in the amount of Twenty Thousand and No/100 ($20,000.00) Dollars is justified under the circumstances of this case.

Accordingly, the judgment of the trial court sustaining defendant’s peremptory exception of no right and no cause of action as to the claims of Patricia Jarvis von Da-meck, Cedric Wayne Jarvis, and John T. Jarvis is affirmed, and in all other respects, the judgment is reversed.

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of plaintiffs, Sammie Sistrunk Jarvis and Cedric Scott Jarvis, and against defendant, St. Paul Fire & Marine Insurance Company, in the full and true sum of Twenty Thousand and No/100 ($20,000.00) Dollars, each, with legal interest thereon from date of judicial demand until paid and for all costs of these proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


text:
    Frankie LISTER et al. v. TEXACO, INC., et al.
    No. 12235.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Allen A. McElroy, Jr., McElroy & Ramsey, Berwick, counsel for plaintiff.
    John Blackwell, Caffery, Duhe, Oubre & Gibbens, New Iberia, for Texaco, Inc. and American Motorists Ins. Co.
    Francis Emmett, New Orleans, for St. Paul Fire & Marine Ins. Co.
    Christopher Tompkins, New Orleans, Peter E. Duffy, Metairie, for Louisiana Wildlife & Fish.
    Porteus R. Burke, J. Phil Haney, New Iberia, for Commonwealth Ins. Co. and Ber-ard Boats, Inc.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This is an action, in personam, for personal injuries resulting from a mishap which occurred on the navigable waters of the Atchafalaya River when plaintiffs’ 15 foot pleasure boat was allegedly rocked by wave wash created by the defendants’ crewboat “KATHLEEN”, causing the plaintiff, Alice S. Lister, to fall from her seat in the pleasure boat.

Plaintiffs’ petition originally alleged:

“This is an admiralty and maritime claim within the meaning of rule 9(h) of the Federal Rules of Civil Procedure, and jurisdiction of this Court is invoked pursuant to the savings to suitors clause, Article III, Section 2 of the United States Constitution.”

The petition further requested that there be a trial by jury.

Defendants filed a motion to strike plaintiffs’ demand for a jury trial “. . .on the ground that no right of trial by jury exists under the Constitution or laws of the United States as to the issues set forth in Plaintiffs’ petition . . ” and a rule to show cause was issued.

A hearing on the rule was held on May 5, 1978, during which plaintiffs requested the court’s permission to amend paragraph 1 of their original petition to read as follows:

“This is a claim made under the laws of the State of Louisiana and United States of America, and jurisdiction of this Court is invoked pursuant to the laws of the State of Louisiana and the saving to suitors clause of the United States Constitution.”

After arguments by opposing counsel the trial judge permitted the amendment but found that the “. . . case falls within the scope of admiralty jurisdiction where trials by jury are prohibited by law. . . ” Accordingly, defendants’ motion to strike plaintiffs’ demand for a jury trial was granted.

On plaintiffs’ application to this court we issued an alternative writ of mandamus directing the trial judge to grant a jury trial of all issues presented by relators’ petition as amended, or, in the alternative, directing the trial judge and the respondent, Texaco, Inc. et al, to show cause in this Court why the writ should not be made peremptory. The trial judge elected the alternative, and the matter is now before us for decision.

This court was not favored with a return by the honorable trial judge; however, the respondents, Texaco, Inc. et al, in brief, contend that inasmuch as relators have chosen to bring this matter in state court specifically pleading rule 9(h) of the Federal Rules of Civil Procedure, which identifies their claim as a maritime claim, mere reference in their petition to jurisdiction pursuant to the saving to suitors clause under 28 U.S.C. § 1333 does not entitle them to a trial by jury. Respondents further contend that no right to * trial by jury exists under the general maritime law and that uniformity requires that Louisiana law must yield to federal maritime law. Rela-tors elected to bring their claim in state court pursuant to the savings to suitors clause where they were assured the common law remedy of a jury trial. However their claim, as originally set forth, included the rule 9(h) designation which invokes the admiralty jurisdiction wherein jury trials are specifically prohibited. In Romero v. Bethlehem Steel Corporation, 515 F.2d 1249 (5th Cir. 1975), the Court of Appeals held that where an action cognizable in admiralty may also be brought as a civil suit on the law side of the Federal District Court pursuant to the savings to suitors clause of 28 U.S.C. § 1333, a jury trial may be obtained simply by omitting or withdrawing the 9(h) designation. The choice made by the pleader in identifying or in failing to identify his claim as an admiralty or maritime claim is not an irrevocable election. Inasmuch as relators were allowed to amend their petition to delete the rule 9(h) designation, they have effectively waived their rights under admiralty procedures and/or remedies. Their claim now proceeds exclusively as a civil action, in state court, pursuant to the savings to suitors clause and they are therefore entitled to a trial by jury. See: Fitzgerald v. United States Lines Company, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed. 720 (1963); Scurlock v. American President Lines, 162 F.Supp. 78 (N.D.Calif.1958);. Moore’s Federal Practice, Vol. 7A p. 2202.

As to respondents’ second contention, we agree that Louisiana law must yield to federal maritime law in actions based upon maritime torts. However, as stated in Fitzgerald v. United States Lines Company, supra, while the Seventh Amendment does not require jury trials in admiralty cases, neither that Amendment nor any other provision of the Constitution forbids them. Nor does any statute of Congress or Rule of Procedure, Civil or Admiralty, forbid jury trials in maritime cases tried in an ordinary civil action in state court, or in federal court on the civil side, given diversity of citizenship and the requisite jurisdictional amount. Therefore, there is no such prohibition in maritime tort actions arising pursuant to the savings to suitors clause. Accordingly, there is no conflict between the Louisiana law which grants unto relators the right to trial by jury and the federal maritime law.

The writ issued herein is therefore made peremptory, and it is ordered that relators be granted a jury trial of all issues presented by their petition as amended on May 5, 1978.

WRIT MADE PEREMPTORY.