author: LOTTINGER, Judge.

text:
    James PICARD v. Raymon J. SHAUBHUT.
    No. 10479.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writ Refused Feb. 17, 1976.

      John L. Goldsmith, Gonzales, for appellant.
    Karl Cavanaugh, Denham Springs, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit by petitioner, James Pi-card, against the defendant, Raymon J. Shaubhut, wherein petitioner seeks a declaratory judgment in his favor declaring that a servitude of passage exists on the lands of defendant in accordance with the terms of a Partition Deed dated October 8, 1949, and, in the alternative, declaring his property to be without access and granting him a servitude of passage across the property of defendant in accordance with the provisions of LSA-C.C. art. 701. The Trial Court awarded judgment in favor of defendant and dismissed petitioner’s demand ; petitioner has appealed.

This matter was submitted to the Trial Court on a stipulation of facts. Petitioner acquired his tract of land from Ervin Ay-dell by Act of Sale dated February 21, 1972. Ervin Aydell had acquired his property from Alphonse Aydell on May 18, 1950, and Alphonse Aydell had acquired the property in a partition with his former wife, Armethea Aydell, on October 8, 1949.

The tract of land belonging to the defendant, Raymon J. Shaubhut, was acquired from Hymel Fontenot, who had acquired it from Armethea Aydell on August 18, 1958. Armethea Aydell had acquired the property in the October, 1949, partition. It was in the Act of Partition between Alphonse Aydell and Armethea Ay-dell, that a twenty-two foot wide right of way or servitude of passage was granted in favor of the tract of land acquired by Alphonse Aydell over that portion of the tract of land granted to Armethea Aydell.

It was stipulated that several witnesses if called would each testify that they had lived, or owned property, in the vicinity of the Shaubhut tract, one who was still living adjacent to the right of way, for many years, and were very familiar with the twenty-two foot wide lane in question. Each of these witnesses would have testified that to the best of their knowledge the lane had not been used for some twenty to thirty years prior to the petitioner’s use or attempted use thereof.

With regard to the alternative demand, the stipulation of facts submitted provides as follows:

“In regard to plaintiff’s alternative demand, plaintiff James Picard would testify and the testimony of Maurice Ay-dell, James E. Brignac, Ellis Berthelot, and Bertin [iic] Aydell would be substantially the same and it is stipulated that the property of Alphonse Aydell had access only to the Maurice Aydell Road until recently when there was purchased access to Highway 42. The distance from the property of plaintiff to Maurice Aydell Road is just 1,000 feet, whereas the distance through the newly acquired access is approximately 2,500 feet. It is stipulated that a direct line distance from the property of plaintiff to Hwy. '42 would be approximately equal to the distance to the Maurice Aydell Road, but would be in its entirety across property other than his ancestor in title.”

Both the tract of land owned by the petitioner and the tract of land owned by the defendant were at one point both part of the same parent tract, being owned by Alphonse Aydell and his wife, Arme-thea Aydell. A partition of this common tract took place on October 8, 1949. With the Act of Partition, the tract of land granted to Alphonse Aydell became enclosed, by the partition itself, and shut off from access to a public road, railroad, or tramroad. LSA-C.C. art. 701 provides:

“It is not always the owner of the land which affords the shortest passage who is obliged to suffer the right of passage; for if the estate, for which the right of passage is claimed, has become inclosed by means of sale, exchange or partition, the vendor, coparcener or other owner of the land reserved, and upon which the right of passage was before exercised, is bound to furnish the purchaser or owner of the land inclosed with a passage gratuitously, and even when it has not been sold or transferred with the rights of servitude.” [Emphasis added]

Therefore, the tract of land acquired through the partition by Armethea Aydell owed a servitude of passage to the tract of land granted to Alphonse Aydell.

Was the language in the Act of Partition between Armethea Aydell and Alphonse Aydell the expression of the establishment of a conventional or voluntary right of way or servitude of passage, or was it merely a recognition and designation of the right of way and servitude of passage imposed by LSA-C.C. art. 701 ? The language in the Act of Partition is as follows, to-wit:

“It is specifically understood and made a part of this partition that the said Mrs. Armethea Aydell does hereby grant unto the said Alphonse Aydell a right of way and passage on and over the land described in No. 2 above [one of the two tracts granted to Mrs. Armethea Aydell in the partition] as follows: Starting at the intersection of Burlin Aydell land north line with Maurice Aydell Road, thence in a Westerly direction toward the Alphonse Aydell land along the boundary between Burlin Aydell and Mrs. Armethea Aydell, and thence on to the East boundary line of Alphonse Ay-dell land, the said right-of-way to be 22 feet in width, and all rights and advantages pertaining to rights-of-way and with full and general title to same and to adhere to himself and heirs and assigns forever.”

Does the inclusion of language defining a right of way or servitude of passage in an act of partition, where one tract owes the other tract a legal servitude of passage, create a conventional or voluntary servitude, or merely recognize and designate the existing legal servitude ? Our brethren on the Fourth Circuit in Arcuri v. Cali, 244 So.2d 309 (La.App. 4th Cir. 1971) held that where the plaintiff was not entitled to a legal servitude under LSA-C.C. arts. 699 and 701 or LSA-R.S. 48:731 et seq., that any language in the Act of Sale making reference to a servitude was the establishment' of a conventional servitude rather than the recognition of a legal servitude. That, however, is not the situation before this Court, because at the time of the Act of Partition, the tract granted to Armethea Aydell did owe a legal servitude of passage and of way to the tract granted to Alphonse Aydell. LSA-C.C. art. 701. Therefore, we are of the opinion that the language in the Act of Partition, rather than creating a servitude of passage by agreement of the parties, simply recognized and designated that servitude of passage which the Alphonse Aydell tract, as the dominate estate, had over and across the Armethea Aydell tract, as the servient estate.

Since we have reached the conclusion that the language in the Act of Partition was merely the recognition of a legal servitude, is that servitude of passage pres-criptible because of non-use ?

In attempting to determine the meaning of any article or articles as found in the Louisiana Civil Code, we must first realize and understand that the redactors of the Louisiana Civil Code of 1870, as well as prior Civil Codes, divided, sub-divided and . further sub-divided the articles of the Civil Code into books, titles, chapters, sections, and lastly the articles themselves. The discussion of servitudes in the Civil Code of 1870 is found in Book II, entitled “OF THINGS, AND OF THE DIFFERENT MODIFICATIONS OF OWNERSHIP.” Book II is sub-divided into six titles, one of which is Title 4, “Of Predial Servitudes Or Servitudes Of Land.” Title 4 is further sub-divided into four chapters, to-wit: Chapter 1, “General Principles”; Chapter 2, “Of Servitudes Which Originate From The Natural Situation Of The Places”; Chapter 3, “Servitudes Imposed By Law” ; and Chapter 4, “Of Conventional Or Voluntary Servitudes.”

In Chapter 2, “Of Servitudes Which Originate From The Natural Situation Of The Places”, there are only four code articles i. e. Art. 660, natural drainage; Art. 661, running water; Art. 662, right of a proprietor to make an enclosure around his estate; and Art. 663, right to compel neighbors to fix and mark boundaries.

Next is Chapter 3, “Of Servitudes Imposed By Law.” This chapter contains Art. 664 through and including Art. 708. It discusses the shores of navigable rivers, levees, roads and common works, Art. 665; that one can do what he wants on his own land as long as it does not deprive his neighbor of the enjoyment of his land, though it may inconvenience him, Arts. 667 and 668, though the inconvenience rule would not apply to smoke or smell, Art. 669; that one must not allow his buildings to fall to ruin so as to cause damage to another, Art. 670, and that in the meantime, the neighbor is authorized to make necessary repairs, Art. 671; that city councils can make rules as to the pulling down of buildings in case of fire, Art. 672; and that where one builds either above or below his property, it must be perpendicular, Art. 673.

The last article, LSA-C.C. art. 674, lists the other particular servitudes imposed by law, to-wit:

“1. To boundary walls, enclosures and ditches; [LSA-C.C. arts. 675-691]
“2. To cases where it is necessary to have double or counter walls; [LSA-C.C. arts. 692-695]
“3. To the right of lights and of view on the property of a neighbor; [LSA-C.C. arts. 969 and 697]
“4. To carry off water from roofs; [LSA-C.C. art. 698]
“5. To the right of passage and of way.” [LSA-C.C. arts. 699-708]

Section 5 of Chapter 3, Art. 699 through and including Art. 708, treats “Of The Right Of Passage And Of Way.” Of importance and interest to this case are the following codal articles, to-wit:

LSA-C.C. art. 699. The owner whose estate is enclosed, and who has no way to a public road, railroad, or a tramroad may claim the right of passage on the estate of his neighbor or neighbors to the nearest public road, railroad, or a tramroad and shall have the right to construct a road, railroad or tramroad according to circumstances and as the exigencies of the case may require, over the land of his neighbor or neighbors for the purpose of getting the products of his said enclosed land to such public road or railroad tramroad or for the cultivation of his estate, but he shall be bound to indemnify his neighbor or neighbors in proportion to the damage he may occasion.
LSA-C.C. art. 700. The owner of the estate, which is surrounded by other lands, has no right to exact the right of passage from which of his neighbors he chooses.
The passage shall be generally taken on the side where the distance is the shortest from the inclosed estate to the public road.
Nevertheless, it shall be fixed in the place the least injurious to the person on whose estate the passage is granted.
LSA-C.C. art. 701. [See quotation of this article above]
LSA-C.C. art. 702. A passage must be furnished to the owner of the land surrounded by other lands, not only for himself and workmen, but for his animals, carts, instruments of agriculture, and everything which may be necessary for the use and working of his land.
LSA-C.C. art. 703. When the place for the passage is once fixed, he to whom this servitude has been granted can not change it, but he who owes this servitude may change it from one place to another, in order that it may be less inconvenient to him, provided that it afford the same facility to the owner of the servitude.

So far, we have discussed general principles of servitudes, servitudes which originate from the natural situation of the places, and servitudes imposed by law. We note that in LSA-C.C. arts. 699 et seq., the servitude of passage and of way is discussed, but this is not the only area of our Civil Code that speaks of the servitude of passage.

Chapter 4 of Title IV treats of conventional or voluntary servitudes. This means, servitudes that are brought about by agreement of the parties. This Chapter is divided into five sections, to-wit: Section 1, “Of The Different Kinds Of Conventional Or Voluntary Servitudes”; Section 2, “How Servitudes Are Established”; Section 3, “How Servitudes Are Acquired”; Section 4, “Of The Rights Of The Proprietor Of The Estate To Which The Servitude Is Due”; and Section 5, “How Servitudes Are Extinguished.”

In Section 1, there are three codal articles that speak of the right of passage or of way, to-wit:

LSA-C.C. art. 719. The right of passage in cities is a servitude by which an owner permits his neighbor to pass through his house or lot to arrive at his own.
This servitude to be perpetual, must be so expressed in the title; otherwise it ceases with the person who enjoys it, and does not pass to his heirs.
LSA-C.C. art. 721. The principal rural servitudes are those of passage, of way, of taking water, of the conducting of water or aqueduct, of watering, of pasturage, of burning brick or lime, and of taking earth or sand from the estate of another.
LSA-C.C. art. 722. The right of passage, or of way, is a servitude imposed by law or by convention, and by virtue of which one has a right to pass on foot, on horseback, or in a vehicle, to drive beasts of burden or carts through the estate of another.
When this servitude results from the law, the exercise of it is confined to the wants of the person who has it.
When it is the result of a contract, its extent and the mode of using it is regulated by the contract.

LSA-C.C. art. 727, also found in this section, classifies a servitude of passage as a discontinuous servitude.

Since we have therefore noted the servitude of passage being discussed in two separate chapters of the Civil Code, it follows that the redactors contemplated two servitudes of passage, one being a servitude imposed by law and the other being a servitude by convention or voluntary agreement.

In Section 5, entitled “How Servitudes Are Extinguished,” LSA-C.C. art. 789 provides that a servitude is extinguished by the nonusage during a period of ten years, but LSA-C.C. art. 795 provides that “prescription for non-usage does not take place against natural or necessary servitudes, which originate from the situation of places.”

We have gone through this lengthy discussion of Title IV, “Of Predial Servi-tudes Or Servitudes Of Land” to point out how the articles of the Civil Code are divided within this Title into Chapters and then into Sections, and the subject matter covered by each.

Petitioner contends that the servitude of passage created by LSA-C.C. art. 701 is non-prescriptible according to LSA-C.C. art. 795. He argues that the servitude created by LSA-C.C. art. 701 is a necessary servitude, and thus under the language of LSA-C.C. art. 795 is non-prescriptible.

It is interesting to note that in looking at the manner in which Title IV of this Book is divided, that there is a separate chapter on servitudes which originate from the natural situation of the places, as well as a separate chapter on servitudes imposed by law, and in neither of these chapters is any mention made of prescription. It is only in Chapter 4, “Of Conventional Or Voluntary Servitudes” that we find any language that speaks of how servitudes are extinguished. Secondly, in the chapter on conventional or voluntary servitudes is found LSA-C.C. art. 795 which provides that natural or necessary servitudes do not prescribe.

The question arises, are the terms natural and necessary synonymous. We think not. We do reason, however, that the term natural as used in LSA-C.C. art. 795 refers to those servitudes created under Chapter 2, “Of Servitudes Which Originate From The Natural Situation Of The Places,” and that the term necessary has reference to those servitudes created and established by Chapter 3, “Of Servi-tudes Imposed By Law.” If it were intended that those servitudes imposed by Chapters 2 and 3 of Title IV could be lost by prescription, then specific reference to their loss by prescription would be made either in those two chapters or specifically otherwise.

Civil Code Art. 795 first appeared in the 1825 Civil Code of Louisiana, and there was no corresponding article in the 1808 Civil Code nor in the Code Napoleon. It is interesting to note, however, that even though the French writers did not have a codal article comparable to LSA-C.C. art. 795 to discuss, they did discuss the im-prescriptibility as it related to servitudes. Aubry and Rau, in Droit Civil Francais, Volume XII, §§ 770-776 bis (6 ed. 1958, by Paul Esmein) translated by the Louisiana State Law Institute, Civil Law Translations — Volume 5, say at page 426 of the translation that:

“.[12] Legal Powers. — Powers inherent in ownership or derived from an assignment are by their nature imprescriptible on grounds of non-use alone.”

The footnote to that statement is as follows, to-wit:

“Such is the case of the power to use running water contiguous to one’s land (Art. 644) [LSA-C.C. art. 661], to cut roots, runners, shoots and branches of trees penetrating from a neighboring land (Art. 673), to demand passage to an enclosed land (Art. 682) [LSA-C.C. art. 699]. Dunod, ibid,; [Baudry-] Tissier, No. 163; Civ. 25 March 1844, S. 44. 1. 602; Pardessus, I, Nos. 21, 56; Troplong, I, 112; Limoges, 2 Apr. 1846, D. 47. 2. 12; Req. 28 July 1874, S. 75. 1. 404, D. 75, 1.317 * * *.”

The reference in the footnote to Baudry-Lacantinerie & Tissier, Prescription (Ed. 4, 1924, updated) Nos. 162, 163 and 165, which is also translated in the same volume at pages 93 and 94, reads as follows, to-wit:

“162. This citation can even today serve as the basis of the doctrine of im-prescriptible faculties. According to Dunod, imprescriptible faculties are those which are derived from natural freedom, or which represent the exercise of an ownership right or, finally, those which the law attributes to everybody independently of any contract.
“163. These numerous faculties may not be lost by prescription because in a way they are derived from a title which is being renewed every day and which the entitled person does not have to keep in force by any active steps. Among them are the faculties to come and go, to practice a craft, to build, to plant, to excavate on one’s land, to acquire the ownership of one-half of a common wall, to request the delimitation of one’s field, to enclose one’s property, to request passage from an enclave, to request the partition of undivided estate, the use of water flowing by, to force one’s neighbor to allow passage of irrigation water or the drainage of noxious water,-or to tolerate the support of a dam, to cut the branches and request the cutting of the roots of his neighbor’s tree which invade his land. All these faculties are part of the general law of property; and together with it, they are not extinguished by nonuse. The same is true of the right to use public and common things. All these faculties are, as Troplong called them, rights in the state of availability (droits en disponibilité). The legal facts which produce them may be subject to prescription, but the faculties themselves are not. Another person may not possess nor use them. On the other hand, their exercise can not raise a presumption of abandonment, for they are subordinated to our will, to the need of the moment. They are rights of a faculative nature in the sense that the entitled person is free to use or not to use them, without any prejudice to their existence being caused by nonuse. They are attached to a status which can not be prescribed (personal status, ownership, residence in a municipality) and they last as long as it does. They can be lost only indirectly, if a third party acquires a right which can not be reconciled with the given faculty.
* * * * *
“165. Although the Code does not speak of imprescriptible faculties, this does not mean that they do not exist. To explain this discrepancy between fact and statute, the following arguments which do not seem to be sufficiently rigorous and exact have been suggested: not all rights are extinguished by nonuse; Arts. 1234 and 2262 envisage only obligations and choses in action; there are rights which are outside these norms and do not require the exercise of an action to be made effective; they can not be extinguished for no statutory text says so; and also, since they do not give birth to any action, they are not affected by Iterative prescription.
This reasoning is not sufficient to justify the imprescriptibility of faculties. We shall see later whether it is correct to say that only rights equipped with a remedial action are subject to prescription. But we can observe right now that even such rights may be protected against prescription. We have already cited the right to acquire title to one half of a common wall, to request delimitation of land, partition; others could be added. The line of distinction must be drawn in this manner: faculties are rights which are the consequences of ownership, or are derived directly from statute, without depending on any contractual agreement; whereas rights proper are constituted by human will. Faculties may not involve the exercise of any action and yet not be susceptible of prescriptive extinction, for the title on which they depend is, so to speak, renewed every day and is the result of a statute. We are not saying that impre-scriptible . faculties are all rights derived directly from statutes, but only that they are derived from a continuing situation, as has been exemplified abpve.”

We are of the opinion as were the above French writers that those servitudes imposed by law are necessary servitudes and are therefore imprescriptible. We reason, that if plaintiff’s ancestor in title upon acquiring the tract of land that is enclosed, and upon having designated in his deed of title the area of land which he was to use to have passage from his enclosed estate were never to use that passage, then he could lose something that was guaranteed to him by law.

The general rule that the right of passage is a discontinuous apparent servitude and such a servitude may be established only by title, or by judicial decree, Estopinal v. Storck’s Estate, 44 So.2d 704 (La.App.Orl. Cir. 1950), does not apply to those servitudes imposed by law, Bonnabel v. Police Jury, 216 La. 798, 44 So.2d 872 (1950).

There is no question but that the servitude of passage granted by LSA-C.C. art. 701 is granted by law, it is not granted by agreement of the parties. It is imposed by law to guarantee that the enclosed estate will have access to a public road, railroad, or tramroad. As we have already above noted, the language in the Act of Partition setting out the strip of land over which the servitude of passage is to be exercised, was not the creation of the servitude of passage, but merely the designation of the area over which that servitude was to be exercised.

Since we have concluded that the legal servitude of passage as designated and recognized in the Act of Partition has not prescribed, and is still in existence and must be recognized, there is no need to discuss the petitioner-appellant’s alternative demand.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is reversed.

It is now ordered, adjudged and decreed that there be judgment in favor of petitioner, James Picard, and against Raymon J. Shaubhut, declaring that the right of way and servitude of passage contained in the Act of Partition between Alphonse Ay-dell and Mrs. Armethea Aydell, dated October 8, 1949, to be a valid right of way and servitude of passage.

All costs of this appeal are to be paid by defendant-appellee.

Reversed and rendered.


source: Caselaw Access Project

author: SARTAIN, Judge.

license: Public Domain

text:
    William J. GUSTE, Jr., Attorney General of the State of Louisiana, ex rel. Mrs. Mary Pane JOHNSON, et al., Plaintiff-Appellee, v. Joseph H. BURRIS, Legislative Auditor, Defendant-Appellant.
    No. 10512.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writ Refused March 12, 1976.
    Robert P. Simm and John G. Morgan, Louisiana Legislative Council, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., and William T. Reeves, Jr., Staff Atty., Baton Rouge, for plaintiff-appellee.
    Before SARTAIN, BAILES and PICKETT, JJ.
   SARTAIN, Judge.

Defendant brings this appeal from judgment in favor of plaintiff in the amount of $15,000.00 rendered pursuant to L.R.S. 33:1981 which provides that the attorney general is to seek benefits on behalf of the surviving spouse and dependant children of firemen who suffer death as a result of job related injuries. We affirm the result reached by the trial court.

The facts of this case are not in dispute and appear in record in a pretrial stipulation as follows:

A) August Johnson was a paid, regularly employed fireman with the Jefferson Parish Fire Department on and prior to his death on September 4, 1973.
B) At the time of his death, decedent left a surviving spouse, Mrs. Mary Pane Johnson and a dependent minor child, Priscilla Marie Johnson.
C) August Johnson, died as a result of a heart attack while he was returning from a fire and while riding in a Jefferson Parish Fire Department truck.
D) August Johnson was a full-time fireman for the East Jefferson Consolidated Fire Department from February 1, 1953 to the date of his death September 4, 1973.

The affidavit of Robert M. Patton, M. D., the decedent’s personal physician, shows that decedent had a past history of heart trouble. He stated further:

“The heart condition that Captain Johnson suffered with could be aggravated by physical and/or emotional stress such as the work I know that he performed in conjunction with his duties as a Captain with the Fire Department.
On September 4, 1973, Mr. August Johnson was brought into the East Jefferson Hospital with a heart attack and I determined his cause of death to be cardiac arrest due to a heart attack while fighting a fire in his employment with the East Jefferson Consolidated Fire Department. This was what, in my opinion, caused his death and I signed a death certificate so certifying.”

That decedent suffered his attack as a result of his firefighting activities is not here challenged. Rather, the sole issue now before this court, and as stipulated by the parties, is whether a heart attack is an “injury” within the meaning of L.R.S. 33:1981, which states in pertinent part:

C. In any case in which a fireman suffers death as a result of any injury (1) arising out of and in the course of the performance of his official duties as such fireman, or (2) arising out of any activity while on or off duty, in his capacity as a fireman, in the protection of life or property, the legislature shall appropriate the sum of ten thousand dollars, which shall be paid to the surviving spouse of such fireman, and, in addition thereto, should such fireman be survived by dependent children, the legislature shall appropriate the sum of five thousand dollars for each of said dependent children which sums shall be paid to the duly appointed and qualified tutor or other legal representative of said child.

The question presented us is res nova in Louisiana as we can find no case that has construed any part of the above statute since its original passage in 1968 (Act No. 387). The statute was reenacted and amended by Act 27 of the First Extraordinary Session of 1975 to conform the then existing law to the provisions of Article X, Section 29(D) of the Constitution of 1974, which states:

(D) Compensation for Survivors of Law Enforcement Officers and Firemen. The legislature shall establish a system, including the expenditure of public funds, for compensating the surviving spouses and dependent children of law enforcement officers, firemen, and personnel, as defined by law, who die, or who died after June 30, 1972, as a result of injury sustained in the performance of official duties or in the protection of life or property while on or off duty.

Article 14 of the Louisiana Civil Code states:

Art. 14. The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.

Webster’s Third. International Dictionary defines “injury”, in part, as “an act that damages, harms, or hurts.” In further defining the synonyms of the word it is stated “injury, hurt, damage, harm, and mischief mean in common the act or result of inflicting on a person or thing something that causes loss, pain, distress, or impairment.”

The Louisiana courts have long recognized that, under certain circumstances, coronary failure can constitute an injury and an accident within the meaning of our workmen’s compensation law. In Murray v. Mengel Co., 9 So.2d 818 (La.App., 1st Cir., 1942) we held:

“If the exertion and straining in working cause such an elevation in the blood pressure of a person with hardened arteries as to cause the artery to rupture and result in a hemorrhage, this is an injury to the physical structure of the body and is such an unexpected and unforeseen occurrence as to constitute an accident within the meaning of the compensation law. It is now well established in our jurisprudence that, if excessive heat, heavy lifting or straining, although usual and customary, cause or contribute to a physical breakdown or accelerate its occurrence because of a preexisting condition, the legal requirements are present to constitute an accident, and the injury is compensable. Wright v. Louisiana Ice & Utilities Co., 19 La.App. 173, 138 So. 450; Ozbolt v. Weber-King Mfg. Co. et al., La.App., 193 So. 383; Nickelberry v. Ritchie Gro. Co. et al., 196 La. 1011, 200 So. 330.” (Emphasis ours).

In the present case, we feel the term injury, as used in its ordinary sense and as expressed in the jurisprudence of this state, encompasses the cause of death here presented to us. It is obvious that firemen are constantly exposed to heat and smoke and that this has a detrimental effect on one’s physical well being. Our legislature has even established a presumption in favor of firemen who have served more than five years that heart and lung diseases which develop after that time are presumed to be employment related. L.R. S. 33:2581.

We feel that had the legislature intended to limit the word “injury” to only those traumatic in nature, they would have done so. Instead, in the very first section of the act it is made clear that it is to apply to any injury related to the employment:

A. It is hereby declared to be the public policy of this state, under its police power, to provide for the financial security of surviving spouses and dependent children of firemen where such firemen suffer death as a result of any injury arising out of and in the course of the performance of his official duties as such fireman, or arising out of any activity while on or off duty in the protection of life or property. (Emphasis ours)

Thus, it appears to us that a restrictive interpretation is here neither called for nor intended, but rather, one which compels at least an application of common meaning, if not liberal interpretation, in order to effectuate the strong public policy expressed in the act to provide financial security for the state’s firemen.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.


author: JULIAN E. BAILES, Judge Pro Tem.

text:
    BOWLES & EDENS CO. v. H & H SEWER SYSTEMS, INC., and American Employers Ins. Co.
    No. 10478.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Kenneth Rigby, Shreveport, for appellant.
    Paul Marks, Jr., and Daniel R. Atkinson, Baton Rouge, for appellees.
    Before SARTAIN, J., and BAILES and PICKETT, JJ. Pro Tem.
   JULIAN E. BAILES, Judge Pro Tem.

This appeal is of the judgment of the district court sustaining the motion for summary judgment and peremptory exceptions of no cause or right of action filed by American Employers Insurance Company (American) and dismissing plaintiff’s suit as to American. We reverse and remand.

There is no dispute as to the facts. A written contract for the construction of a water distribution system in Quail Creek Subdivision in Alexandria, Rapides Parish, Louisiana, was entered into between the owners of the development and H & H Sewer System, Inc. (Contractor), for the sum of $51,772.75. A performance bond was provided for the Contractor by American to the Owners in the amount of $52,000. Both the contract and the bond were timely recorded in the mortgage records of Ra-pides Parish. In due time the certificate of final acceptance was recorded in the said mortgage records.

Plaintiff-appellant, Bowles & Edens Company, sold and delivered to the .Contractor certain building supplies and materials required for and used in the construction of the water distribution system on which there is a past due and unpaid principal balance of $12,986.56.

In this action plaintiff-appellant brought suit against both the Contractor and American to recover the unpaid purchase price of the building materials sold and delivered to the Contractor as noted above.

The ground urged by American in both its motion for summary judgment and its exceptions of no cause and no right of action for dismissal of plaintiff’s action is the following:

The performance bond states, in part, that:

* * *
“Now, therefore, if Principal (the contractor) shall, subject to the performance of Owner’s obligations to Principal, perform Principal’s obligations under said contract and keep the property free and clear of any and all mechanic’s and ma-terialmen’s liens for labor or materials furnished in connection therewith, then this obligation shall be void; otherwise it shall remain in full force and effect, subject, however, to the following conditions :
“ * * *
“(6) No right of action shall accrue on this bond to or for the use or benefit of any person or corporation other than the Owner and Lender -herein named, anc? no suit, action or proceeding shall be had or maintained against surety on this bond unless the same be brought or instituted within one (1) year after the date of the completion of the work by Principal or after the date of any default by Principal in the performance of the contract.”

While the trial court did not assign written reasons for judgment, it would appear it held that Condition (6) of the bond was a legal and binding condition of American’s obligation under the performance bond, and inasmuch as plaintiff was neither the owner nor the lender it had no cause of action and no right of action against American. Further, it would appear that the trial court reached the conclusion that the bond furnished by American was a conventional bond into which it could effectively place such conditions as might be agreeable to the two contracting parties and itself.

Appellee American argues that the bond was furnished under LSA-R.S. 9:4801 et seq., involving “Private Works” as opposed to “Public Works” covered by LSA-R.S. 38:2241 et seq. Further, American argues there is no statutory or mandatory requirement that a bond be furnished or that it be filed under LSA-R.S. 9:4801 et seq. In the trial court, as well as here, American relies for support of its position on two recent cases of this court. These cases are Fireman’s Fund American Insurance Companies v. Milstid, 253 So.2d 571 (La.App. 1971), and National American Bank v. Southcoast Contractors, Inc., 276 So.2d 777 (La.App.1973). We find these cases are clearly distinguishable from the instant case.

In National American Bank v. Southcoast Contractors, Inc., supra, there was no issue before the court which required it to decide whether the bond therein sued on was statutory or conventional. When the court decided that the rights of National American Bank were derivative under the assignment from the owner, the following statement of the court found on page 781 that:

* * * Of course, the subject bond is conventional in the sense that the parties to a building contract for the erection of a private work and an accessory performance bond are controlled by the language, intention and meaning of the documents as contradistinguished from a contract and bond for the erection of a public work, which latter undertakings must contain certain conditions and rights imposed by the statute, which, if omitted, are read into the obligations. * *

is dicta and is not authority in the instant case.

The other case relied on by Appellee of Fireman’s Fund American Insurance Companies v. Milstid, supra, was distinguished for us by the Supreme Court in its refusal of writs (260 La. 131, 255 So.2d 355) when it stated:

“Writ denied. The result is correct. In Electrical Supply Co. v. Eugene Freeman, Inc., 178 La. 741, 152 So. 510, the contract and bond were recorded as required by R.S. 9:4802 (then Act No. 298 of 1926), and that bond was statutory. R.S. 9:4812 applies to private works both when there is no contract and when the contract is unrecorded as in the instant case. (Emphasis added.)

Again in Patent Scaffolding Co. Inc. v. Ross Corporation, 172 So.2d 364 (La.App. 4th Cir. 1965) it was dicta when that court, on page 367, said:

“[4] * * * A bond on a private work is not a statutory bond in the sense that a bond on a public work is statutory for there is no mandatory requirement that one be furnished. This distinction was recognized in the DeFrances case. Since this is a mandatory statutory bond its provisions can not be enlarged as was done conventionally in a conventional bond in the DeFrances case [DeFrances Marble and Tile Co. v. Coxe, 148 So.2d 83 (La.App.1962)]”.

In Jimco, Inc. v. Gentilly Terrace Apartments, Inc., 230 So.2d 281 (La.App. 4th Cir. 1971) the opinion does not state whether the mandatory requirements of the Private Works statute had been followed. Even so, the particular facts of that case, bar its application to the instant case.

The Plaintiff-Appellant argues that the bond furnished by American to the Owner is a statutory bond and that any provisions thereof which are contrary to the provisions of Private Works statutes must be read out of the bond. It cites the cases of Minden Presbyterian Church v. Lambert et al., 167 La. 712, 120 So. 61 (1929), and Electrical Supply Co. v. Eugene Freeman, Inc. et al., 178 La. 741, 152 So. 510 (1934).

In Minden Presbyterian Church v. Lambert, supra, the indemnitor of the surety on the bond which did not track the statute (Act 139 of 1922, a source statute of R.S. 9:4801 ét seq.) filed an exception of no cause of action based on this variance between the terms of the bond and the surety’s obligations under the statute. In passing on the exception, the Supreme Court stated:

“[3,4] * * *
“It was the evident intention of the owner to exact of the contractor the bond required by statute, and it was the evident intention of the contractors and the surety to give such a bond. The bond being a statutory one, and such being the intention of the parties, whatever, is in the bond is not required by law should be read out of it, and whatever is not expressed in the bond, and should have been included in it, should be read into it. Davis v. West Louisiana Bank, 155 La. 245, 99 So. 207; Id., 155 La. 252, 99 So. 210. Applying the foregoing principle- here there can be no question as to the sufficiency of the bond. Moreover, not applying that principle, it is difficult to see how, under a bond conditioned on the contractor’s well and truly fulfilling any and all conditions of the contract, the obligation being imposed upon him to deliver the building free from liens, the surety on the bond is not bound to see that the building is so delivered. * * * ”

In Electrical Supply Co. v. Eugene Freeman, Inc., 178 La. 741, 152 So. 510 (1934), a suit by a materialman against a contractor and the surety on the contractor’s bond, defended on the ground that the plaintiff-materialman had granted an extension of time to the contractor to pay the debt thereby relieving the surety from liability under Civil Code Article 3063 which provides that the prolongation of the terms granted to the principal debtor without the consent of the surety operates a discharge of the surety, the Supreme Court in rejecting this defense of the surety, inter alia, stated:

“[3] And, since the bond herein given is a statutory bond, we must look to the statute under which the bond was given to find the conditions of the bond; for whatever is written in it, not required by the statute, must be read out of the bond, and whatever is not expressed in it, but which ought to have been incorporated, must be read into it.” (Citations omitted).

Here follows a condensation of the provisions of R.S. 9:4801 and 4802 insofar as this plaintiff is affected thereby:

Every furnisher of material who furnishes material for the construction of immovable property with the consent of the owner or of any person with whom the owner has contracted for such work, has a privilege for the payment in principal and interest of such materials furnished, upon the land and improvements on which the materials were furnished. (9:4801)

Every contract hereafter entered into for the construction of any work on immovable property by any general contractor undertaking such general contract with the owner shall be reduced to writing, signed by the parties thereto by an authentic act, or under private signature, and shall be recorded in the office of the clerk of court or the recorder of mortgages of the parish wherein said work is to be executed, before the date fixed on which the work is to commence and not more than thirty days after the date of the said contract. Such recordation shall preserve the privileges on the buildings or other work of improvement, and on the land on which it is situated, in favor of every furnishers of material as their interest may arise. The owner of such work shall require of such contractor a bond with surety as follows: If the contract is over ten thousand dollars, but does not exceed one hundred thousand dollars, the bond shall be not less than fifty per cent of the amount of the contract but not less than ten thousand dollars in any event. The bond shall be attached to and recorded with the contract in the office of the clerk of 'court or recorder of mortgages, as above set forth, and the condition of the bond shall be the true and faithful performance of the contract and the payment of all furnishers of material as their interest may arise. (9:4802)

The provisions of § 4803 are quoted in full:

“Subject to the limitation provided in R. S. 9:4814, where the owner has required the bond herein provided, the surety thereon shall be liable in solido with the contractor for all labor and materials used in the said work of improvements and the costs of recording valid privileges up to the amount of the bond, and the cancellation and erasure of the inscription of the said contract, as herein-above provided, shall not affect the liability of the said surety on the said contract for such labor and materials, as to which labor and material the said surety shall be bound to the same extent as the said contractor, undertaker, master-mechanic, or engineer, or other person undertaking the work.” (Emphasis added)

Further, we quote § 4814, in part, as follows :

“A. Except as provided in Subsection C of this Section nothing in this Sub-part shall be so construed as to deprive any claimant of his right of action against the surety signing and (sic) [any~\ bond furnished in connection with any building contract or sub-contract, or against the principal obligor thereunder, which right of action against such obligor and the said surety shall accrue at any time after maturity of the claim of the said claimant. (Emphasis added)

On examination of the Public Works statutes, namely, R.S. 38:2241 et seq., it is found there is similarity between its provisions and those of the Private Works statutes. Particularly noteworthy is that for the failure of the private owner to enter into a written contract, or his failure to record the written contract and bond, and failure to obtain a bond of the contractor, the sanction for such inaction is that the owner is personally liable. Similarly, in the Public Works statutes, the sanction on the public body or governing authority is found in R.S. 38:2244, which, in part, provides :

“ * * * Whenever it is found that the surety is not solvent or sufficient to cover the amount of the bond or that the governing authority has failed to exact the bond or record the bond within the time allowed, the governing authority shall be in default and shall be liable to the same extent as the surety would have been. * *

Research reveals that as far back as Act 180 of 1894, the legislative intent was that one who contracts with a builder or contractor shall require of the contractor solvent security for the payment of workmen and furnishers of materials. The penalty for failure to follow these mandates was personal liability of the owner. This legislative intent and purpose of the act has been demonstrated in every subsequent act down to our present statute. See: Act 134 of 1906, Act 196 of 1912, Act 221 of 1914, Act 229 and 262 of 1916, Act 139 of 1922, and Act 298 of 1926. Each and every Act enumerated above contains clear, unambiguous language that the. owner shall require a bond of the contractor the condition of which shall be the performance of the contract and the payment of all workmen, and furnishers of materials.

Much confusion has been created by the courts of appeal not delineating in earlier cases whether the mandates of the Private Works statutes of recordation of the contract and bond have been met. It should be put to rest, for the security of lienholders within the terms of the statutes, that where the requirements of R.S. 9:4802 have been complied with by the owner, the surety bond is a statutory bond entitled to the same status now accorded a bond furnished under the Public Works Act, R.S. 38:2241 et seq.

Considering the mandatory language of these Private Works statutes, it is resorting to artifical distinction to hold that a bond furnished in compliance with R.S. 9:4801 et seq., is not a statutory bond. Our conclusion is that the bond furnished by American to the owner herein who complied with the mandatory provisions of the applicable law is a statutory bond.

The interpretative precept of reading into the bond that which is lacking for security of those protected by the bond, particularly those provided in R.S. 9:4802 and 4803 and reading out of the bond those provisions not required by the statute, is applicable to a statutory bond furnished under and recorded with the contract between the owner and contractor herein.

For the foregoing reasons, the judgment appealed is reversed and this suit is remanded to the trial court for further proceeding not inconsistent herewith.

Reversed and remanded.


author: DENNIS, Judge.

text:
    Joe R. STRICKLAND, Jr., Individually and on behalf of the minor, Joe R. Strickland, III, Plaintiff-Appellant, v. Una W. HART, Defendant-Appellee.
    No. 12740.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    Joe D. Guerriero, Monroe, for plaintiff-appellant.
    Carl F. Walker, Monroe, for defendant-appellee.
    Before PRICE, DENNIS, and MARVIN, JJ.
   DENNIS, Judge.

This tort suit results from personal injuries and property damage sustained in an intersectional vehicular collision which occurred in Monroe, Louisiana on July 5, 1974. The district court rendered judgment for the defendant, Una W. Hart, against the plaintiff, Joe R. Strickland, Jr., individually and on behalf of the minor, Joe R. Strickland, III, dismissing plaintiff’s action at his cost. The plaintiff appealed.

The trial judge wrote an opinion setting forth his findings of facts and conclusions. We concur in his excellent and concise reasons for judgment, and we therefore adopt the district court opinion as the opinion of this court:

“This suit arises out of a collision which occurred July 5, 1974, on Gordon Avenue at its intersection with Jack McEnery Street in Monroe. Plaintiff’s pickup truck was being driven north on Gordon Avenue by his minor son; and defendant was turning south onto Gordon from McEnery, having approached Gordon from the west. Plaintiff seeks recovery of vehicle damages, loss of use of the truck, medical expenses for treatment of his son and damages for injuries allegedly sustained by his son. For the reasons hereafter stated, the Court sustains defendant’s plea of contributory negligence, thus rendering moot the other issues related to the negligence of defendant and quantum of damages.

“Gordon Avenue runs north and south, carries one lane of traffic traveling in each direction. Parking is permitted on both sides of the street, which is actually only a little more than three lanes wide. Traffic on Gordon is preferred by ordinance over that on McEnery, where there are stop signs at or near the intersection. Gordon has curbs and gutters while Mc-Enery is bordered by ditches. The curb line at the intersection is curved, making a somewhat rounded corner rather than a square one. A short distance south of the intersection on the west side of Gordon there are shrubs or bushes which at least partially obscured the southward vision of a motorist on McEnery at the intersection.

“Defendant resides in the house on the southeast corner of this intersection, but her driveway is on the south side of her house. Thus, approaching the intersection, defendant intended to turn right, proceed south on Gordon and then turn left into her driveway.

“After stopping, defendant ‘eased’ out and into her right turn. She testified she could not see past her driveway on Gordon because of the previously mentioned shrubbery ; and when she got out into the southbound lane, making her turn, she saw a vehicle quite a distance ahead in the same lane. Her first visual impression was that it was traveling south, but she then realized it was coming toward her in the ‘wrong’ lane. She then virtually stopped and the left side of the Strickland truck collided in a ‘sideswipe’ with the left front corner of her car.

“The point of impact was a few feet south of the south line of McEnery, about three feet west of the center of Gordon. According to the investigating officer, defendant’s right rear wheel was still in McEnery and slightly west of the west line of Gordon. After this collision, the truck skidded across the intersection and struck a pole north of the intersection with sufficient force to break it.

“The speed of the truck was variously estimated at 35 to 40 miles per hour by young Strickland, his passenger and the officer (the latter basing his view on ‘calculations’ from skid marks and force of impact with the pole). Both youngsters testified they were slightly exceeding the speed limit; but two neighbors of defendant living about a half-block south of the intersection both testified they were working in their yard and their attention was drawn to the truck by its speed as it passed.

“The two youngsters both testified that along the block south on Gordon, vehicles were parked on both sides of the street in such' places as to require the driver to ‘weave’ between them, pulling back and forth between the two travel lanes. According to them, one such vehicle was parked in front of defendant’s home on the east side of Gordon, necessitating their driving partially in the wrong lane. Their testimony concerning the presence and location of parked vehicles was generally supported by plaintiff, who arrived on the scene very shortly after the collision. The Stricklands live on Gordon several blocks south of the location of the accident.

“The evidence thus summarized preponderantly reveals: that defendant had no reason to anticipate the presence of a northbound vehicle in the southbound lane as she began to enter Gordon and that she never reached the center line; that plaintiff’s son, completely familiar with the hazards he described to exist, nonetheless proceeded at an excessive speed without caution; that he was therefore negligent and his negligence was a proximate cause of the accident.”

Accordingly, the judgment of the district court is affirmed at the cost of the appellant.

Affirmed.


text:
    Lynn M. KING v. PAN AMERICAN LIFE INSURANCE COMPANY et al.
    No. 10486.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 24, 1975.
    Rehearing Denied Jan. 12, 1976.
    Writ Refused March 5, 1976.
    James C. Dixon, Baton Rouge, for appellant.
    Donald T, W. Phelps, Baton Rouge, William F. Dodd, New Orleans, for appellees.

      Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This case involves a group health and accident policy issued by Pan American Life Insurance Company to Asbestos Workers Local S3 Welfare Fund, which policy covers the plaintiff-appellant, Lynn M. King, as a member of the group. Appellant sued Pan American and Asbestos Workers alleging the latter to be an agent of Pan American on the insurance policy, and in the alternative alleging that Asbestos Workers was liable on a negligence theory for failing to provide the appropriate information concerning the insurance policy so that appellant might have timely protected the rights he had in the policy. Pan American filed an exception of prescription which the Lower Court sustained, and Asbestos Workers filed an exception of improper venue stating that it is domiciled in the Parish of Jefferson, which exception the Lower Court sustained and transferred the action against Asbestos Workers to Jefferson Parish. Plaintiff has appealed from these, adverse rulings on exceptions filed by the two defendants.

On September 2, 1971, appellant was a certificate holder under a group policy issued by Pan American to Asbestos Workers. Appellant was injured on that date and his claim is that on October 21, 1971, certain dental injuries manifested themselves following an examination by a dentist, Dr. D. S. Danburg.

On November 4, 1971, appellant notified Pan American of this claim by claim form and an attached itemized list of the dental work Dr. Danburg believed to be necessary on plaintiff. Because of notation on the claim form that this was a work-connected accident Pan American wrote a letter to a union representative of Asbestos Workers dated November 8, 1971, to verify this aspect of the claim since work connected injuries were not covered by the policy in question. When no reply was received, another letter dated December 22, 1971, was written by Pan American to Asbestos Workers and on January 4, 1972, a representative of Asbestos Workers called Pan American to advise that it was a nonoccupational injury. On January 6, 1972, Pan American wrote Dr. Danburg to determine what services had been rendered between September 2 and December 2 because, by Pan American’s interpretation of the policy, it was only liable to pay for medical services rendered within ninety days of the injury. As it turned out, the only services rendered during this period amounted to $25.00 as set forth in Dr. Dan-burg’s letter to Pan American dated January 11, 1972. Then on January 18, 1972, Pan American wrote to Asbestos Workers advising that it was denying the claim because only $25.00 in services had been rendered during the ninety day period, which $25.00 would be applied to a $100.00 deductible. Appellant claims that throughout the above period of time he made repeated requests on Pan American for a copy of this insurance policy but failed to get a copy of same. No other activity occurred until May of 1974 when counsel for appellant requested a copy of the master policy and was supplied with same. On October 9, 1974, suit was filed.

We will first deal with the exception of prescription filed by Pan American. Appellant contends that the Lower Court erred in determining the period of time in which he had to file suit. The policy itself provides as follows:

“Proof of such injury or sickness must be furnished to the Company at its Home Office not later than ninety (90) days after the termination of the period for which benefits are payable hereunder.
“Failure to furnish notice or proof within the time provided herein shall not invalidate any claim if it shall be shown that it was not reasonably possible to give such notice or proof within such time and that such notice or proof was given as soon as was reasonably possible.
“No action at law or in equity shall be brought to recover on the Policy prior to the expiration of sixty (60) days after proof of claim has been filed in accordance with requirements of the Policy nor shall such action be brought at all unless brought within two (2) years from the expiration of the time within which proof of claim is required by the Policy.”

Appellant argues that the provisions of this policy are contrary .to the law of this state as provided in R.S. 22:213A(5) which provides as follows:

“A. Required provisions — Each such policy 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; provided that, except as permitted by R.S. 22:211, Sub-section C, no time limitation with respect to the filing of notice or proof of loss or within which suit may be brought upon the policy shall differ from the time limitations of the following provisions:
“(5). Proofs of loss: Affirmative written proof of loss must be furnished to the insurer at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the insurer is liable and in case of claim for any other loss within ninety days after the date of such loss. Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible and in no event later than one year from the time proof is otherwise required. . . . ” (emphasis added).

Appellant argues that since the insurance policy in question does not contain the above emphasized language, nor has defendant shown that it has procured an opinion from the commissioner of insurance that the deletion of the emphasized language is not less favorable to the policyholder, said language must be read into the policy in question. As an interpretation of R.S. 22:213A(5), appellant cites the Louisiana Supreme Court case of Suire v. Combined Insurance Company of America, La., 290 So.2d 271 (1974) for the proposition that .the emphasized language of R.S. 22:213A(5) means that a claimant has an additional year in which to file proof of claim, and thusly the time for filing suit is extended an additional year. Suire involved a life insurance policy which was unknown to the beneficiary, and the Court held that the beneficiary could not possibly file proof of claim on a policy he did- not know existed, thus extending the time for filing proof of clam one year under R.S. 22:213A(5), and thus extending the time for filing suit on the insurance policy an additional year. So, according to appellant, by the Suire case the time for filing proof of claim is one year and ninety (90) days, and then, by the terms of the policy, the time for filing suit is two (2) years past that time. There is no validity to such an interpretation of the law in a case where there is no reason to prevent the claimant from filing proof of claim within the time provided. In the case before us proof of claim was filed within ninety days of the injury and of manifestation of injury, and even using the latter date, that is manifestation of injury as the beginning of the ninety day period to file proof of claim, the suit before us would prescribe in January of 1974 rather than January of 1975 as appellant believes to be correct.

In the alternative, appellant believes that if suit was filed late, this late filing should be excused because Pan American did not deliver a copy of the policy to the appellant. R.S. 22:634(A) provides:

“Subject to the insurer’s requirements as to payment of premium, every policy shall be delivered to the insured or to the person entitled thereto within a reasonable time after its issuance.”

Pan American presented testimony that in the case of group policies it is customary to deliver the policy to the group along with certificates of the contents of the policy to be delivered by the group to each of its members eligible for coverage. Furthermore, there was testimony presented by a witness that such a certificate was mailed to appellant shortly after he became eligible for this coverage on April 1, 1966. Appellant’s testimony was that he was never furnished with such a certificate. In light of testimony by witnesses we do not feel that the Lower Court erred in determining that the appellant did not prove that he did not receive a copy of the certificate of insurance.

Appellant also argues that even if the time for filing his suit is past, then he should be excused for his failure to file timely in that he was lulled into a feeling that his claim would be paid without the necessity of filing a lawsuit. Appellant testified that he called Pan American’s office on more than one occasion within the first few months of his injury and was advised that a check in the full amount of his claim was awaiting the necessary signatures. Even if this is true, there is no merit to this argument inasmuch as Pan American denied the claim on January 18, 1972, giving appellant two years to file suit.

We now come to the question of the exception to venue filed by Asbestos Workers which was sustained by the Trial Court. Appellant’s petition alleges that Asbestos Workers was bound jointly and in solido with Pan American because Asbestos Workers was acting as the agent for Pan American in collecting the premiums and in administering the policy. Appellant also argues that Asbestos Workers is also an insurer along with Pan American for the obligations contained in the policy. We note that Appellant’s petition in the Trial Court does not contain such an allegation and there is nothing in the record indicating such to be the case. We are of the opinion that the venue as to Asbestos Workers is controlled by LSA-C.C.P. art. 73, which provides:

“An action against joint or solidary obligors may be brought in any parish of proper venue, under Article 42, as to any obligor who is made a defendant.
“If the action against this defendant is compromised prior to judgment, or dismissed after a trial on the merits, the venue shall remain proper as to the other defendants, unless the joinder was made for the sole purpose of establishing venue as to the other defendants.” (emphasis added)

It is quite clear from the language of the second paragraph of LSA-C.C.P. art. 73 that if the action is “compromised prior to judgment, or dismissed after a trial on the merits,” then and only then will the venue remain as to the other defendant or defendants. However, this is not the case in this situation. The action was dismissed as against Pan American on an exception of prescription, and thus, the venue as to Asbestos Workers fell with the sustaining of the exception. DeBouchel v. Koss Const. Co., 180 La. 615, 157 So. 270 (1934).

For the above and foregoing reasons, the judgment of the Trial Court on the exception of prescription and exception of improper venue is affirmed, all costs to be paid by plaintiff-appellant.

Affirmed.


author: DENNIS, Judge. HALL, Judge

text:
    Ben G. O’NEAL, Plaintiff-Appellant, v. Jimmie P. CASCIO, Defendant-Appellant.
    No. 12706.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    James E. Franklin, Jr., Shreveport, for appellant, Ben G. O’Neal.
    Nelson & Pugh by Sydney B. Nelson, Shreveport, for appellant, Jimmie P. Cas-cio.
    Cook, Clark, Egan, Yancey & King by Sidney E. Cook, Shreveport, for appellee, third party defendant, James B. Wells.
    Before BOLIN, HALL and DENNIS, JJ-
   DENNIS, Judge.

This appeal arises out of a jury trial involving a promissory note given in connection with an attorney-client employment contract. Ben G. O’Neal, plaintiff, alleging himself to be the owner and holder in due course for value of the note, sued defendant, Jimmie P. Cascio, the maker of the note, for the balance due thereon, and Cascio filed a third party demand against James B. Wells, the original owner of the note.

During the latter part of November, 1973, Cascio was charged in a complaint filed by the United States Attorney with obstruction by extortion in violation of 18 U.S.C. § 1951. He immediately sought and retained the services of Wells, a Bossier City attorney. At their initial conference on November 26, 1973, Wells advised Cascio that the amount of the attorney’s fee could not be set at that time because Wells could not tell how much work would be involved. After informing himself about the charge, Wells wrote a letter to Cascio on December 6, 1973 describing the nature of the charge, the maximum penalty involved, the kind of legal services which would be needed, and the amount of attorney’s fee he would charge. On December 10, 1973 Cascio called on Wells at his office and, after a conference with the attorney, signed a written contract employing Wells as his lawyer for a fee of $15,000. At this time he also executed a promissory note, which is the subject of this litigation, in the amount of $15,000, payable in monthly installments of $1,250. Cascio paid the first installment of $1,250 on December 10, 1973 and a second on January 7, 1974.

Cascio initiated efforts which led to a conference between himself, Wells, the United States Attorney and others. After this conference, Cascio volunteered to appear before the grand jury and answer any questions. Wells advised against this action, but Cascio went to the hearing on January 14 and 15, 1974 and, although he was not actually called as a witness, answered some questions put to him by F.B.I. agents outside the grand jury room. After this questioning he was told by the agents that the charge against him would be dropped. On the same day, January 15, 1974, Cascio went to Wells’ office and informed him that the charge would be dropped. Several days later Cascio received a letter from O’Neal stating that he had purchased from Wells the $15,000 note signed by Cascio. The letter was dated January 11, 1974 but was enclosed in an envelope postmarked January 21, 1974. On January 28, 1974 the complaint against Cascio pending in the United States District Court was dismissed.

Cascio employed other counsel who wrote letters to O’Neal on February 8, 1974 and Wells on February 10, 1974 advising them the note would not be paid. Subsequently O’Neal filed this suit against Cascio claiming to be a holder in due course of the note and seeking payment for the balance due. Cascio answered the suit denying that O’Neal was a holder in due course, denying that he was liable to Wells for any more than the fair value of his services which were alleged to be $500, and filed a third party demand against • Wells demanding that Wells hold him harmless from any judgment in favor of O’Neal and demanding refund of $2,000 of the $2,500 previously paid.

The case was tried to a jury which returned a verdict in favor of the defendant, Cascio, rejecting the demands of the plaintiff, O’Neal. The jury further returned a verdict in favor of the third party defendant, Wells, rejecting the demands of Cas-cio against him. Court costs were assessed equally to O’Neal and Cascio. Appeals were taken from a judgment conforming to the verdicts by O’Neal and Cascio.

On appeal, O’Neal contends:

(1) The trial judge erred in permitting a jury trial on the suit by plaintiff against defendant because the request for a jury was not made timely.

(2) Cascio is not entitled to raise the defenses of failure of consideration or mistake and error against O’Neal because he is a holder in due course.

(3) There was, in fact, no failure of consideration as the $15,000 fee was reasonable under the circumstances and Cas-cio is bound by his arms-length contract.

(4) There was no error or mistake as all the circumstances were-'explained to Cascio by Wells and he agreed to pay the $15,000 fee.

Cascio contends on appeal that the trial court erred in assessing i/2 of the court costs against him. He also appealed so as to protect his rights under the third party demand in the event of reversal with respect to the main demand.

1. The Trial Court Properly Allowed a Trial by Jury

The petition in the principal demand was filed on March 11, 1974, by O’Neal. Cas-cio answered and filed the third party demand against Wells on April 22, 1974. After Wells filed exceptions and a motion for a summary judgment, Cascio filed an amended third party petition on July 22, 1974 demanding a trial by jury on both the principal and third party demands. On the same day the trial court entered an ex parte order that the case be tried by jury. On August 5, 1974 O’Neal filed a motion to strike the request for a jury trial as to the principal demand on the ground that it was untimely. Wells answered the third party petition on October 7, 1974. The trial court overruled the motion causing the entire case to be tried before a jury.

The Code of Civil Procedure, in pertinent part, provides:

“Art. 1731. Issues triable by jury
Except as limited by Article 1733, the right of trial by jury is recognized.
The nature and amount of the principal demand shall determine whether any issue in the principal or incidental demand is triable by jury.”
“Art. 1732. Demand for jury trial
A party may demand a trial by jury of any issue triable of right by a jury in a pleading filed not later than ten days after the service of the last pleading directed to such issue.”

Article 1731 recognizes the right of trial .by jury in all civil cases, subject to exceptions not here pertinent. When read in conjunction with this provision, Article 1732 requires a trial court to grant a trial by jury of any issue triable of right by a jury if requested within the prescribed delay. The question raised by the instant proceeding, however, is whether a trial court may in its discretion grant a trial by jury even after the delay has elapsed. In the absence of any statutory prohibition, and in view of the well established policy of our law favoring a litigant’s right to a jury trial, e. g., see Champagne v. American Southern Insurance Company, 295 So.2d 437 (La.1974); Arrington v. McCarty, 136 So.2d 119 (La.App., 3d Cir. 1962), we conclude the legislature did not intend to preclude the granting of an untimely request for a jury trial by a court acting within its sound discretion and without prejudice to adverse parties.

No contention has been made in the instant proceeding that any party has been prejudiced by the trial court’s order that the case be tried by jury, and we find no abuse of discretion by the trial judge in this respect from our review of the record.

2. The Evidence Justifies A Finding That There was Error as to A Principal Cause of the Contract

During his early investigation of the charge against Cascio, Wells attended a preliminary hearing in the case on December 4, 1973. There he learned that portions of F.B.I. tape-recordings of Cascio’s conversations on which the government’s case was based were inaudible or unintelligible. However, on December 6, 1973, when Wells wrote to Cascio, he did not mention this possible fatal weakness in the government’s case, but instead expressed his view that Cascio would apparently be indicted, go to trial, and, if convicted, be exposed to a possible fine of $10,000 and a 20 year prison sentence. Therefore, Wells’ letter stated, it would be necessary, in order to properly defend Cascio, to take depositions of witnesses, investigate jurors and spend a minimum of a year to D/i years in and out of court. There is evidence in the record that Cascio’s co-defendant had assured Wells of Cascio’s innocence and seemed willing to accept total responsibility for the events leading to the charges being filed. There is also evidence that Cascio had never been charged with a serious crime before this and was a respected member of the community. Yet, Wells testified he really thought Cascio could have received a 20 year penitentiary sentence. Cascio testified that Wells never did say there was a possibility the charges would be dropped but stated that Cascio would be indicted and go to trial.

Errors may exist as to all circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself. La.C.C. Art. 1823. The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive, and means that consideration without which the contract would not have been made. La.C.C. Art. 1825. No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it. La.C.C. Art. 1826. In all cases, however, when the information, which would have destroyed the error, has been withheld by the other party to the contract, it comes under the head of fraud, and invalidates the contract. La.C. C. Art. 1832.

Based on the evidence the jury reasonably could have found that Cascio’s principal cause or motive in entering the contract was to obtain legal defense against a long and formidable prosecution in court based on a grand jury indictment which he erroneously considered to be inevitable. An error of fact proceeds either from ignorance of that which really exists or from a mistaken belief in the existence of that which has none. La.C.C. Art. 1821. The evidence justified a finding that Cas-cio was' ignorant of the gaps in the F.B.I. tapes and a finding that he mistakenly believed evidence existed which undoubtedly would lead to an indictment and lengthy court proceedings. Cascio’s mistaken belief was reasonable in view of what he had been told by his attorney, an experienced criminal lawyer, following Wells’ conference with the U. S. attorney and participation in the preliminary examination. The .jury reasonably could have determined that Cascio would not have entered the attorney-client contract or executed the $15,000 promissory note had he been aware of the true facts. Wells was apprised of Cascio’s principal cause or motive of entering the attorney-client contract because Cascio’s conception of the case was based almost entirely upon information and advice provided by Wells. Furthermore, the jury reasonably could have found that information which would have destroyed Cascio’s erroneous conception, i. e., facts relating to the true quality of the government’s evidence, had been withheld by Wells, thus invalidating the contract.

3. The Evidence Justifies a Finding that O’Neal was Not A Holder in Due Course

The verdict of the jury necessarily implied a finding that O’Neal was not a holder in due course. Otherwise, he would have been entitled to enforce payment of the promissory note free from a defense based on the invalidity of the contract between Cascio and Wells. La.R.S. 7:57.

A holder in due course is defined by La.R.S. 7:52 as follows:

“§ 52. Holder in due course; conditions under which taken
“A holder in due course is a holder who has taken the instrument under the following conditions:
(1) That it is complete and regular upon its face;
(2) That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;
(3) That he took it in good faith and for value;
(4) That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

Since the note was regular upon its face and was negotiated before it was overdue, the jury must have found that O’Neal took it from Wells in bad faith, without giving value, or with notice of an infirmity in the instrument or defect in Wells’ title.

We described earlier the somewhat suspicious circumstances under which Cascio received notice of O’Neal’s purchase of the note shortly after informing Wells the criminal charge would be dropped. O’Neal had been a close friend of Wells since boyhood, as well as his client and business associate for many years. Evidence was introduced from which the jury reasonably could have determined that on a previous occasion O’Neal and Wells had perpetrated a subterfuge by having Wells purchase property at a sheriff’s sale in his name for O’Neal in order to defeat the rights of O’Neal’s former wife and judgment creditor. They testified that in the transaction at issue here Wells had been given a $15,000 credit on a pre-existing debt owed O’Neal as consideration for negotiating the promissory note to O’Neal, but there was no written evidence of the credit. According to Wells and O’Neal, the pre-existing indebtedness resulted from Wells’ purchase of an interest in property from O’Neal on credit. The parties introduced sharply conflicting testimony from expert witnesses relating to the value of this property. However, if the jury accepted the value assigned by. Cascio’s expert, they wo.uld have been justified in doubting that Wells, who was familiar with land values, would have agreed to pay as much for an undivided interest in the property as is contended. In turn, the jury reasonably could have questioned whether Wells actually owed a pre-existing debt to O’Neal and, therefore, whether O’Neal actually gave Wells anything of value for the note. Wells and O’Neal also introduced expert testimony as to the value of the land, and more than one reasonable inference could have been drawn from all the evidence. However, we find that the jury reasonably could have inferred that the transfer of the note by Wells to O’Neal was made after Wells knew the criminal charge would be dropped, because Wells anticipated Cascio would not pay the balance of his fee, and that no real consideration passed between O’Neal and Wells. Accordingly, the jury’s determination that O’Neal lacked one or more of the requisites for being a holder in due course was a reasonable factual finding.

In conclusion, there being sufficient evidence to support the finding of the jury that O’Neal was not a holder in due course and that the contract and note were invalid, the jury verdict -is affirmed. Although the trial court has much discretion in taxing court costs, it does not appear equitable to assess any of the costs to Cascio. Therefore, the judgment below will be amended in this respect only.

The judgment of the trial court is amended to tax all costs of these proceedings against O’Neal and, as amended, is affirmed.

Amended and affirmed.

HALL, J., concurs with written reasons.

BOLIN, J., concurs for the reasons assigned by HALL, J.

HALL, Judge

(concurring).

I am in agreement with the result reached on all issues in the foregoing opinion and agree with the reasons expressed on all issues except those expressed relating to the allowance of a trial by jury. On that issue, it is my opinion the request for a jury trial was timely under the provisions of LSA-C.C.P. Art. 1732. The pleadings relating to the third party demand, by definition “incidental” to the principal demand and issues raised therein, are pleadings directed to the issue triable of right by a jury. The request for a jury trial was made at the same time as the filing of a supplemental third party petition and prior to the filing of an answer to the third party petition or the supplemental third party petition. The request was made within ten days after service of the last pleading directed to the issue triable by jury and was, therefore, timely. Although not directly in point, this conclusion is supported by the rationale of Barberito v. Green, 275 So.2d 407 (La.1973); Plaisance v. Collins, 234 So.2d 436 (La.App. 1st Cir. 1970), and Arrington v. McCarty, 136 So.2d 119 (La.App. 3d Cir. 1962).

Concluding that the demand for a jury trial was timely made, the discussion in the foregoing opinion concerning the discretion of the trial judge to grant a jury trial untimely requested after the expiration of the delay provided in LSA-C.C.P. Art. 1732 is unnecessary. I express no opinion on that question, it being unnecessary to a decision of the case and it not being raised or briefed by any of the parties litigant.

I respectfully concur.

BOLIN, J., concurs for the reasons expressed in the concurring opinion of HALL, J.


author: MILLER, Judge.

text:
    Richard B. ROGERS, Plaintiff-Appellant, v. Marion MURPHY et al., Defendants-Appellees.
    No. 5282.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.

      Jerry Kirk, Lake Charles, for plaintiff-appellant.
    Raggio, Farrar, Cappel & Chozen, by R. W. Farrar, Jr., Lake Charles, for defendants-appellees.
    Before MILLER, WATSON and CU-TRER, JJ.
   MILLER, Judge.

Plaintiff Richard B. Rogers appeals the jury verdict dismissing his claim for personal injuries on finding he assumed the risk of riding with a drunken driver. Defendants are Marion Murphy and his insurer Government Employees Insurance Company. Rogers contends the jury’s factual determinations are not supported by the record, and that is the sole issue. We affirm.

Rogers was riding in the right front seat when the southbound 1969 Dodge Charger suddenly veered to the left, crossed the northbound lane of Kirkman Street and struck a utility pole situated near the northeast corner of Kirkman and Cherry Hill streets. The accident occurred about 2:30 a.m. after both Rogers and the other guest passenger had expressed a desire to go home. A few minutes before the accident, the driver said he was wide awake and wanted to continue driving around Lake Charles. Rogers and the guest passenger were asleep when the accident occurred.

The driver testified he went to sleep while driving and lost control of the car. He was arrested on the charge of D.W.I., and a year later pled guilty to that charge. When arrested the driver refused to take the breathalizer test. He thought he couldn’t pass it because his brother, a probation officer, had told him a person would fail the test if he had consumed two beers. Since the driver drank three beers around 8 p.m. and another about 1:30 a.m., he decided against taking the test. The driver explained his guilty plea by stating he couldn’t afford to employ a lawyer to defend him. The driver paid his $200 fine.

A guest passenger who voluntarily accompanies an intoxicated driver cannot recover for injuries received in an accident the cause of which is attributed to the driver’s consumption of intoxicants. Marcotte v. Travelers Insurance Company, 258 La. 989, 249 So.2d 105 (1971); Evans v. Louisiana Farm Bureau, 291 So.2d 865 (La.App. 3 Cir. 1974).

Rogers contends the trial jury erred in finding 1) the driver was under the influence of intoxicating beverages, 2) that Rogers knew the driver was under the influence, and 3) the accident was caused by the driver having been under the influence of alcoholic beverages.

Rogers had been with the driver and other guest passenger from 7 p.m. until the accident occurred at 2:30 the following morning. All three admitted their evening started and ended by drinking beer, but testified both Rogers and the driver consumed only four beers during that period. “As far as they could recall,” no other drinking of alcoholic beverages occurred. All agreed the driver was not under the influence when he drove the car during the four hours preceding the accident. All the driving was on the city streets in Lake Charles and the witnesses could not account for their activities during a substantial part of that time. One witness thought they had stopped several times at quick service stores that sold alcoholic beverages. In deciding credibility the jury had reason to be impressed by the fact that all three continuously conditioned their testimony by stating it was at best they could recall. Their recollection of other events of the evening was established to be faulty, and their opportunities to buy more drinks was established to a certainty.

Rogers argues the arresting officer’s recollection of the arrest was limited to information in his arrest report which noted only that the driver was having difficulty walking and speaking after the accident. Rogers suggests the accident alone would cause difficulty walking and speaking. This argument is rejected because both the driver and guest passenger testified the driver was not injured in the accident. Furthermore the officer explained he would not have required the breathalizer test and arrested the driver for D.W.I. unless there were more reasons than were contained in his report to cause him to suspect drunken driving.

On the entire record, and particularly the driver’s refusal to take the breathalizer test together with his D.W.I. guilty plea which occurred a year later, we fail to find manifest error in the trial jury’s factual determinations.

Where evidence is before the trier of fact which, upon a reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, the appellate court should not disturb this factual finding absent manifest error. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even' though the appellate court may believe its own evaluations and inferences are as reasonable. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Bertrand v. Aetna Casualty & Surety Company, 306 So.2d 343 (La.App. 3 Cir. 1975).

The trial court judgment based on the jury verdict is affirmed at appellant’s costs.

Affirmed.


author: PRICE, Judge.

text:
    Linda Gail Oswalt MINSKY, Plaintiff-Appellee, v. Reynold S. MINSKY, Defendant-Appellant.
    No. 12764.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    Captan Jack Wyly, Lake Providence, for de f endant-appellant.
    Voelker, Ragland & Brackin by William B. Ragland, Jr., Lake Providence, for plaintiff-appellee.
    Before PRICE, HALL and HEARD, JJ.
   PRICE, Judge.

Defendant-appellant, Reynold S. Minsky, appeals from a $350 per month award of alimony granted to plaintiff-appellee, Linda Gail Oswalt Minsky, in a judgment of. absolute divorce. The judgment was read and signed in open court on May 29, 1975. No application for a new trial was filed by either party.

Appellant filed a motion and order for appeal on June 5, 1975 that was made returnable on August 5, 1975. The order was conditioned upon the furnishing of an appeal bond. A bond in the amount of $500 was filed on July 31, 1975.

Under Code of Civil Procedure Articles 3942, 3943 and 2087, an appeal from a judgment awarding alimony may be taken and the security therefor furnished only within thirty days from the expiration of the seven-day delay for applying for a new trial as provided by L.S.A.-C.C.P. Article 1974. See Salvia v. Salvia, 303 So.2d 267 (La.App. 4th Cir. 1974).

In this instant case no notice of judgment was required under L.S.A.-C.C.P. Article 1913, so the delay for a new trial exclusive of legal holidays commenced to run on May 30th and ended on June 9, 1975.

We find that under the applicable provisions of law relating to appeals, the appellant had until July 9, 1975 to perfect his appeal. Although the motion and order were timely filed on June 5, 1975, the security was not furnished until July 31, 1975.

The jurisdiction of our court does not attach unless the order of appeal and bond are timely filed. See Wright v. Mark C. Smith & Sons, et al, 283 So.2d 85 (La.1973).

In accord with the foregoing the appeal is dismissed at appellant’s costs.


author: GLADNEY, Judge.

text:
    William W. WATSON, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, LICENSE CONTROL AND DRIVER IMPROVEMENT DIVISION, Defendant-Appellant.
    No. 12752.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.

      Foye L. Lowe, Jr., Associate General Counsel, Dept, of Public Safety, Baton Rouge, for defendant-appellant.
    Watson & Watson, by Philip B. Watson, Jr., St. Joseph, for plaintiff-appellee.
    Before PRICE, GLADNEY and MARVIN, JJ.
   GLADNEY, Judge.

State of Louisiana, Department of Public Safety, License Control and Driver Improvement Division (Department), appeals from a judgment of the district court annulling an order issued by the agency suspending the driver’s license of William W. Watson and enjoining the enforcement of that order. We affirm.

On February 27, 1974, Watson was interviewed by a driver improvement officer of the department. The interviewer noted that Watson had no accidents on his traffic record but had four violations. The nature of the violations was not noted. Watson was classified cooperative; his traffic record and attitude were considered good. He was placed on six months probation beginning that date.

On December 5, 1974, Watson received notice that his license was being suspended for 60 days for “frequent violations” unless he requested an administrative hearing within 30 days of the notice. He requested such a hearing by letter December 16, 1974. He was notified by the department by letter on March 5, 1975 that the hearing had been scheduled for March 26, 1975.

The officer conducting that hearing found that Watson had received six months probation to end August 27, 1974. He found that on April 30, 1974, Watson had received a ticket charging him with speeding 70 miles per hour in a 55 mile per hour zone. The License Control officer affirmed the suspension, stating:

“Plaintiff offered very little testimony that would justify this violation of probation. He attributes this violation and others to being in too much hurry and having too many things on his mind. It was also noted on his record that he has also received two additional tickets and subsequent fines for traffic violations since the violation of probation. Mr. Watson admits to still another violation that has not reached Hdqs yet to be entered on his record. This makes a total of six convictions of traffic laws on Mr. Watson’s record with one pending.”

The decision was mailed to Watson on April 17, 1975. On April 25, 1975, Watson provoked a rule in the district court ordering the department to show cause why the action of the department should not be annulled and set aside and why the department should not be enjoined from suspending the license. A hearing was had in open court. The district court rendered judgment in favor of Watson and against the department. The department perfected a devolutive appeal.

The department relies upon LSA-R.S. 32 ¡414(D)(3) as the basis for this suspension. It provides:

"D. The department may conduct an investigation to determine whether the license shall be suspended, cancelled or revoked upon a showing by its records or other sufficient evidence that the licensee :
* * * * * *
“(3) Has been convicted of such frequency of serious offenses against traffic regulations governing the movement of vehicles as to indicate a disrespect for traffic laws and a disregard for the safety of others.”

Subdivision E of that same article provides for judicial review of the administrative determination by the department. The relevant portion of that subdivision provides :

“ * * * Any person denied license or whos.e license has been suspended, can-celled, or revoked shall have the right to file an application within thirty days thereafter for a hearing before the district court of the parish in which the applicant resides, and such court is vested with jurisdiction to set the matter for hearing in open court upon ten days written notice to the department, and thereupon to determine whether the person is entitled to a license or is subject to suspension, cancellation or revocation of license under the provisions of this Chapter, and appeal from the district court may be taken to any court of competent appellate jurisdiction.”

The district court is vested by this statute with jurisdiction to determine independently the status of the plaintiff’s license without regard to the decision of the Department; thus, the language “ * * * such court is vested with jurisdiction . to determine whether the person is entitled to a license or is subject to suspension, cancellation, or revocation of license under the provisions of this Chapter.” In discussing this problem in relation to a mandatory revocation under LSA-R.S. 32:414(B), but reviewable under the same procedure as is applicable in the instant case, this court in State, Department of Public Safety v. Moore, 311 So.2d 20 (La.App., 2d Cir. 1975) stated:

“While we do not question the right of the department to act upon such evidence as it had before it in the instant case, nevertheless we find that when a hearing in court is held the department must prove by competent evidence the facts on which the revocation is based. The hearing in the district court is not a review of the findings of an administrative agency. It is a hearing to determine if, in fact, plaintiff has been twice convicted of the offense of driving while intoxicated, plead guilty or forfeited bail under a charge of driving while intoxicated. This fact must be proved by legal, admissible evidence. . . .” Id. p. 23

We believe that an analogous task was presented to the district court in the instant case. Applied to the facts of Watson’s case, the department had to prove that Watson had been convicted of such frequency of serious offenses against traffic regulations governing the movement of vehicles as to indicate a disrespect for traffic laws and a disregard for the safety of others. The court concluded upon the evidence presented that the department had failed in its burden of proof. We cannot say that the lower court erred.

To properly evaluate Watson’s license status it was necessary for the district court to examine the nature of the offenses committed by the licensee in light of the circumstances surrounding each violation. The trial court found that Watson had been convicted of speeding in seven separate incidents over a period of a little more than three years. All of the violations except one were on the interstate highway system. All were for speeds around 70 miles per hour. All were in the daytime and in clear weather, with no accidents involved. The court also noted that the fines could be paid without a court appearance and, in this case, often were. The trial court concluded that Watson’s violations, considering the circumstances, did not indicate the requisite disrespect for traffic laws and disregard for the safety of others. The legislature in LSA-R.S. 32:414(E) has exclusively authorized the trial court to make such an evaluation when an application for hearing is filed by the licensee. Unlike the district court’s relationship to the Department of Public Safety in such matters, this court’s scope of appellate review is limited. We cannot say that the district court committed manifest error.

For the reasons assigned the judgment is affirmed, and the State of Louisiana, Department of Public Safety, is assessed with whatever costs it is legally liable to pay.