text:
    Succession of William W. HARLEAUX.
    No. 11514.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.

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

This is an action by Osborne & Richard, a law firm, for the balance of $2,718.30 claimed to be due for professional services which were allegedly performed by it in the Succession of William W. Harleaux. The American Bank and Trust Company was sued in its capacity as trustee of a testamentary trust created and established by the decedent prior to his death. The bank was ordered to show cause by rule why the attorney’s fees should not be made executo-ry through the rendition of judgment against the bank in its capacity as trustee.

By way of background, the following events preceded the present action: At the decedent’s death, he left his wife, Florence B. Harleaux; a son, William W. Harleaux, Jr.; and a daughter, Linda Harleaux Spottsville. The judgment of possession was in conformity with the decedent’s will, and, in short, gave to the wife the family home and certain personal property, with the balance of his estate being placed in trust with the American Bank and Trust Company as trustee. Under the trust, the wife was established as beneficiary of all of the income produced by the trust, with the son succeeding her as income beneficiary upon her death, and the daughter was established as the principal beneficiary.

The intention of the testator was summarized in the following provision of the will:

“ * * * While I am aware that the provision expressed herein may be contrary to the laws of Louisiana, it is my desire" that after the death of my wife, Florence Davis Harleaux, my son, William W. Harleaux, Jr., have the use of my estate for the balance of his life. It is my intention then that whatever is left shall go to my daughter, or her children. It is my desire that my daughter not contest any provisions of this will which may give her less than the portion allowed by law. It is also my wish that my son not try to change, in any way, the provision for him under this will as I believe it is for his best interest.” (Record, p. 12)

Before the rule could be heard, the Har-leaux widow and heirs filed a general denial to all of the allegations made by mover, together with an allegation that they were the real parties in interest and that the use of summary proceedings to tax attorney’s fees against the trustee was not authorized by law. The pleading was styled “Exception of Unauthorized Use of Summary Proceeding.”

The above rule was heard by the trial judge, and he permitted the appellants to intervene in the proceedings; but held that, as intervenors, they could not object to the form of the action, relying on LSA-C.C.P. art. 1094.

The trial judge then set the rule for hearing at a later date in order to give counsel representing the widow and heirs an opportunity to prepare a defense to the claim of attorney’s fees against the trustee.

Thereafter, counsel for the widow and heirs filed a petition via ordinaria to nullify the judgment of possession on the grounds that one of the heirs, William W. Harleaux, Jr., was an incompetent and had not been legally represented in the succession proceedings. It was also alleged in said petition that the judgment was obtained by ill practices in that “a false inheritance tax return was filed to which none of the heirs and legatees affixed their signatures as required by law.” The sole defendant in this action to nullify the judgment was the trustee, the American Bank and Trust Company.

Subsequently, the trial judge consolidated all matters before the court, namely, the rule to tax attorney’s fees and the petition to nullify the judgment of possession. After hearing the rule and having a trial on the merits of the petition to nullify the judgment, the trial judge awarded attorney’s fees to Osborne & Richard as prayed for, and further awarded attorney’s fees to the attorneys representing the trustee, but the judgment was otherwise silent as to the disposition of the petition to nullify the judgment.

The motion by the appellants objecting to the use of summary proceedings should not have been treated as an intervention. They were actually the real parties in interest inasmuch as the widow and son were income beneficiaries of the trust and the daughter was the principal beneficiary.

LSA-C.C.P. art. 641 defines an indispensable party as follows:

“Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
“No adjudication of an action can be made unless all indispensable parties are joined therein.”

We believe the Harleaux widow and heirs met this test and, accordingly, they were entitled to challenge the use of summary proceedings to determine what attorney’s fees, if any, should be paid by the trustee. The diminution of trust property by a judgment for attorney’s fees, which the appellants deny are owing, gives them such an interest in the matter as to make them indispensable parties to the action.

For these reasons, the trial judge was in error in applying the restrictions of Article 1094 of the Code of Civil Procedure, which would prohibit them from filing a dilatory exception of unauthorized use of summary proceedings.

Having found that appellants, as indispensable parties, have standing to interpose this objection we are of the opinion that the exception must be sustained. LSA-C.C.P. art. 2592, prescribing the use of summary proceedings, does not authorize the use of such a proceeding by an attorney against a trustee to have his fee adjudicated. It is not an incidental question arising out of the course of litigation merely because the attorney’s fees were included in the list of the succession debts. Pittman Construction Company v. Housing Authority of New Orleans, 248 La. 471, 179 So.2d 900 (1965); In re Lomm, 195 So.2d 416 (La.App. 4 Cir. 1967), writ refused, 250 La. 541, 197 So.2d 81 (1967).

We must, therefore, reverse the judgment of the trial court insofar as it awarded the attorney’s fees claimed, and sustain the exception of unauthorized use of summary proceedings and dismiss the action of Osborne & Richard as of non-suit.

Although the judgment was silent as to the disposition of the petition to nullify the judgment, the law is settled that all of the issues presented by the pleadings and on which evidence has been offered will be considered as having been disposed of by a final judgment in the cause, and that demands passed over in silence will be considered as having been rejected by the trial court in the absence of special reservation. Cagle v. Spade Drilling Company, Inc., 325 So.2d 354 (La.App. 3 Cir. 1975). Thus, we must find that the petition to annul the judgment was dismissed by the trial judge, because this was an issue presented in the pleadings and on which evidence was offered on the trial.

The appellants allege that the judgment of possession was obtained by ill practices. See LSA-C.C.P. art. 2004; Succession of Anderson, 323 So.2d 827 (La.App. 4 Cir. 1975). The basis for this allegation is that a false inheritance tax return was filed to which none of the heirs and legatees affixed his signature. The record shows that only the attorney signed the tax return. The law only requires the tax return be prepared and filed by or on behalf of the heirs and legatees. LSA-R.S. 47:2425(A). In addition, the “General Instructions” for the Inheritance Tax Return make it clear that either the heirs or the attorney handling the succession should verify and sign the return. We thus find that the signing of the tax return by the attorney handling the succession was in accordance with law. Moreover, the tax return in the instant case cannot be considered as false. The record discloses that the valuations of the interests of the heirs and legatees were fixed after consultation with the tax collector’s office. They appear to be consistent with the requirement of law that a valuation must be placed upon the interests of trust beneficiaries. Succession of Bellinger, 229 So.2d 749 (La.App. 1 Cir. 1969), writ denied, Kaufman v. Clemmons, 255 La. 279, 230 So.2d 587 (1970); Succession of Kaufman, 274 So.2d 471 (La.App. 1 Cir. 1973); Adams, “Valuation of Interests in Trust: A Louisiana Perspective,” 34 La.L.Rev. 46 (1973).

The appellants also contend that the judgment of possession was null on the ground that one of the heirs, William W. Harleaux, Jr., was an incompetent who had not been legally represented in the succession proceedings. There was no requirement that the alleged incompetent heir be represented in the succession proceedings. There was no allegation that the alleged incompetent was a legatee. The succession proceedings reveal that the widow, Florence B. Harleaux, was named as a legatee of certain property, with the American Bank and Trust Company, as trustee, named as residuary legatee under the decedent’s will. Neither the will nor the probating of the will have been questioned. While, as a trust beneficiary, the son does benefit from the testamentary trust, he is not a legatee under the will. Succession of Carriere, 216 So.2d 616 (La.App. 4 Cir. 1968), writ denied, 253 La. 639, 219 So.2d 175 (1969). Being an heir also does not make the son a legatee under the will of his deceased father. Succession of Price, 197 La. 579, 2 So.2d 29 (1941).

Counsel for the appellants also contends that the judgment of possession was null because no inventory of the alleged incompetent’s property was made. As pointed out in the foregoing elucidation, the alleged incompetent was not a legatee, so there was no requirement that his property be inventoried in these succession proceedings. Furthermore, there was no requirement that an inventory of the succession property be made. A sworn detailed, descriptive list of such property may be filed in lieu of an inventory. The descriptive list serves the same purpose as the inventory, i. e., to provide an evaluation of the decedent’s property so that the succession representative can properly administer the property and the heirs, creditors and other interested parties will be informed of the nature and value of the decedent’s property. Succession of Willis v. Martin, 228 So.2d 732 (La.App. 3 Cir. 1969), writ refused, 255 La. 244, 230 So.2d 93 (1970).

In addition to the foregoing contentions, the appellants assert that the judgment of possession is null because the legatees failed to accept it unconditionally. A review of the succession proceedings shows that there is no merit in this assertion. The legatees under the decedent’s will were the widow and the trustee. The widow accepted the legacy made to her without condition or qualification in the petition of possession. The trustee accepted the trust as its legacy in the affidavit to the petition of possession. We find these acceptances to be unconditional within the meaning of Article 3031 of the Code of Civil Procedure.

Accordingly, we reverse the judgment of the trial court insofar as it awarded attorney’s fees to the mover, Osborne & Richard, and dismiss their action as of non-suit; we affirm the judgment of the trial court dismissing the petition to annul the judgment of possession. Costs to be taxed equally to appellants and appellee.

REVERSED IN PART; AFFIRMED IN PART.


source: Caselaw Access Project

author: COVINGTON, Judge:

license: Public Domain

text:
    Robert L. RABORN v. Lee B. OURSO d/b/a Lee Ourso Repair Service.
    No. 11516.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.

      Robert L. Raborn, Baton Rouge, in pro. per.
    Doris Gates Rankin, Baton Rouge, for defendant-appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge:

The plaintiff, Robert L. Raborn, appeals the judgment rejecting his demands for damages allegedly caused by defendant’s unlawful conversion of plaintiff’s property and dismissing the plaintiff’s suit at his costs. We affirm.

The plaintiff claims that the unlawful conversion came about when he took a washing machine to Lee Ourso Repair Service, and he wished to obtain an estimate of the cost of the work before authorizing repairs; but, that instead of advising him of the estimated cost of repairs, the defendant went ahead and made the repairs to the appliance. Further, the plaintiff alleges that the cost of repairs came to the sum of $71.02, including $32.50 as labor, and that the defendant advised him that that sum of money would have to be paid before the appliance could be released to the plaintiff. The plaintiff further alleges that he went to the defendant’s shop to get the washing machine and that he tendered to the defendant a personal check payable to order of the defendant in the amount of $71.02, with words written thereon to the effect that payment was tendered under protest for release of the machine.

Thereupon, the defendant declined to accept the check under those conditions and informed the plaintiff that he would remove his parts from the appliance, reinstall the old parts and then return the washing machine to plaintiff.

According to the plaintiff, he requested that the defendant not remove the new parts and again tendered the same check to defendant, assuring the defendant that the check was good and payment would not be stopped on it. The defendant refused to agree to this arrangement and insisted that he remove his parts and reinstall the old parts in the washing machine. The plaintiff claims that at this point the defendant became hostile and continued to refuse to accept the tendered check. Thereupon, the plaintiff departed the defendant’s premises. The next day the plaintiff brought the un-repaired washing machine back home and put it in his barn.

On appeal, as he did in the trial court, the plaintiff’s position is that the defendant undertook the repair of the washing machine without consent of the plaintiff and in direct disregard of the plaintiff’s strict instructions not to repair before the plaintiff had approved the estimated cost of repairs. The plaintiff urges that this constitutes a breach of contract, and an unlawful conversion of the plaintiff’s property. Basically, it is the plaintiff’s contention that the defendant owed a duty to return to plaintiff his washing machine with the repairs made and that defendant’s refusal to do so entitles the plaintiff to damages for the wrongful conversion of his property. The plaintiff claims $999.00, plus interest from date of judicial demand until paid, as damages.

After hearing the testimony of the witnesses, the trial judge concluded that the plaintiff had not proved his claim by a preponderance of the evidence and rejected the demands of the plaintiff.

The trial judge stated in his “Reasons for Judgment” that:

“It is believed by the Court that petitioner’s washing machine was restored to its former condition of inoperability and was loaded on petitioner’s pick up truck and no payment was accepted by the defendant.
“None of petitioner’s testimony and that of his witnesses nor any real evidence supports his claim for any damages sustained by him — property or personal. “Upon hearing the testimony and reviewing the evidence the Court is of the opinion that if error was committed in repairing the washing machine when only an estimate was demanded then the error was corrected in all due speed by the replacement of the faulty parts and the return of the machine in its original condition to the petitioner. The defendant in the court’s opinion came under no duty to accept petitioner’s check.”

After reviewing the record and studying the applicable law, we are of the opinion that the trial judge in his reasons for judgment has accurately stated the facts and correctly applied the applicable law. The facts found by the trial judge are reasonably supported by the credible evidence in the record. See Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976); Hoover v. Beatty, 323 So.2d 490 (La.App. 1 Cir. 1975).

Accordingly, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: COVINGTON, Judge: BLANCHE, Judge,

text:
    James C. WILLIAMS v. STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS.
    No. 11521.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    D. Michael Mooney, Lake Charles, of counsel for plaintiff-appellant James C. Williams.
    Michael C. Barron, Staff Atty., Baton Rouge, of counsel for defendant-appellee State of La. through Dept, of Corrections.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge:

Plaintiff, James C. Williams, an inmate of Louisiana State Penitentiary (Angola), who sustained chest injuries in a stabbing incident by Andrew Harding, a fellow inmate, appeals from the judgment of the lower court dismissing his claim for damages. We affirm.

The applicable rule of law has been stated by the Louisiana Supreme Court in the case of Parker v. State, 282 So.2d 483, 486 (La., 1973), as follows:

“A penal institution is not an insurer of an inmate against attacks by other inmates. The standard is that of reasonable or ordinary care. The majority rule is that in order to hold the penal authorities liable for an injury inflicted upon an inmate by another inmate, the authorities must know or have reason to anticipate that harm will ensue and fail to use reasonable care in preventing the harm. St. Julian v. State, La.App., 98 So.2d 284 (1957); 60 Am.Jur.2d, Penal and Correctional Institutions, § 17, p. 821 (1972); 72 C.J.S. Prisons section 13, p. 866; Annot., Prison-Assault by Prisoner, 41 A.L.R.3rd 1021, 1028-1029 (1972).”

Under the Parker rule, the lower court found no negligence on the part of defendant, State of Louisiana through the Department of Corrections, or the prison employees.

We have carefully reviewed the record, and find that the evidence amply supports the lower court’s finding. The record clearly establishes that the prison officials had no forewarning of any danger to the plaintiff, no one anticipated or foresaw any difficulty between the plaintiff and Harding. The officials had no reasonable cause to anticipate an attack on Williams. Prior to the stabbing incident, he had not been threatened in any way by Harding. Indeed, Williams testified that he had never had an altercation or “bad words” with Harding and that he had no reason to fear Harding.

The facts are not in serious dispute. They can be stated briefly. On the date of the stabbing, November 14, 1972, both inmates were assigned a four-dormitory unit in the Big Stripes area designated “Hickory Three.” Harding and another inmate, Albert Dixon, engaged in “horseplaying and tussling,” which got out of hand, so that Harding separated himself from the tussle and came over to Williams’ bed in the dormitory where the plaintiff and another inmate, Hayes Williams, were talking.

The plaintiff described the incident as follows:

“And he told Hayes something and he started arguing with Hayes. Well, then he looked at me, and he told me, that you, T been wanting to do you something.’ And he went down in his boot and got a knife. When he came up with the knife, I tried to move and that’s when I was hit. He knifed me over my chest, right side of my chest, punctured my lung and I went to the hospital.”

The attack appears to have been sudden, unprovoked, and without warning to the plaintiff. At the time of the stabbing, the prison guard was at his proper station, a booth outside of the dormitory. The prison officials arrived promptly on the scene and stopped the altercation. Soon thereafter they removed the plaintiff to the Angola hospital and later to Earl K. Long Hospital in Baton Rouge. These facts clearly show that the penal institution measured up to its standard of “reasonable or ordinary care.”

The appellant primarily argues that the proper officials did not use ordinary care in providing the plaintiff with a safe environment while incarcerated at Angola. In support of his contention, the appellant argues that the Louisiana Supreme Court in Breaux v. State, 326 So.2d 481 (La., 1976) tacitly upheld the broader view of the First Circuit of Appeal in Breaux v. State, 314 So.2d 449 (La.App. 1 Cir. 1975), by not rejecting the view expressed therein.

We had occasion to consider this same argument in our recent decision of Jones v. State of Louisiana, Through the Department of Institutions, 346 So.2d 807 (La.App. 1 Cir. 1977), and we concluded that the Supreme Court has not extended the Parker rule, and that the Parker rule of “reasonable or ordinary care” is the standard applicable to a prison-assault by another inmate, such as we have here.

We adhere to the Jones decision. We find that the penal authorities had no reason to anticipate that harm would come to Williams and that they used all reasonable or ordinary care to prevent harm to him.

Accordingly, we affirm the judgment of the lower court, dismissing the plaintiff’s claim, and cast the appellant for costs.

AFFIRMED.

BLANCHE, Judge,

dissenting.

I respectfully dissent.

When an inmate is incarcerated in a State penal institution, the duty of reasonable care to provide for his safety falls on the State. When one inmate stabs another with a dangerous weapon, the presumption is that the duty has been breached and the burden of proof should be on the State to exonerate itself.

I refuse to believe that the possession of a dangerous weapon by an inmate cannot be prevented by prison authorities. If I am in error in this belief, then this dissent will fall on deaf ears. However, I believe that the possession of such weapons can be prevented with proper supervision and inspection. Accordingly, it is my opinion that when such weapons are obtained by prisoners it is through the gross negligence of the State, and the burden of proof then shifts to the State to show that such possession was not through any lack of due care on its part. No such showing was here made.

St. Julian v. State, 98 So.2d 284 (La.App. 1st Cir. 1957), enunciates a rule requiring that when an inmate willfully stabs another there must be knowledge on the part of the officers in charge that such a stabbing will take place or good reason to anticipate such and that following such knowledge they negligently failed to prevent same. The inequity of this rule must be readily apparent, for it requires the State to know that a prisoner has a knife which, in the first place, he should not have, and that he intends to use it on another.

The St. Julian case cannot stand a duty-risk analysis. If the State owes a duty to prevent daggers, knives, shivs and shanks from falling into the hands of inmates and fails in that duty through lack of due care, then such failure is a cause-in-fact of the injuries which the inmate receives; and the extent of their knowledge before the injury is irrelevant because the duty owed was to protect against the very risk of harm which, in fact, occurred. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972), and all of its progeny.

This writer accepts the legal principle that a jailer should not be charged with negligence in failing to prevent what he could not reasonably anticipate. Honeycutt v. Bass, 187 So. 848 (La.App. 2nd Cir. 1939). However, the application of the rule is entirely dependent on the facts of each case. One could reasonably anticipate that a prisoner in possession of a knife or other such fashioned instrument will use it on another inmate. Thus, the negligence of the State in such cases is not dependent on what its jailer knew but on whether due care was exercised in preventing inmates from coming into possession of such weapons.

I do not regard the State as having carried the burden of proving due and reasonable care for the safety of plaintiff herein and, accordingly, would hold it responsible for his injuries.


author: CHIASSON, Judge.

text:
    Larry D. BODIN v. Gilbert DAUPHINE, Sterling Sugars, Inc., and American Manufacturers Mutual Insurance Company.
    No. 11525.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.

      Allen J. Borne, Franklin, for plaintiff.
    Jacob D. Landry, Landry, Watkins, Cousin & Bonin, New Iberia, for Gilbert Dau-phine, Sterling Sugars, Inc. and Kemper Ins. Co.
    L. Albert Forrest, New Iberia, for State Farm Mut. Ins. Co.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This is an appeal by Larry D. Bodin, plaintiff-appellant, of a judgment rendered against him and in favor of Gilbert Dau-phine, Sterling Sugars, Inc. (Sterling), and American manufacturers Mutual Insurance Company, defendants-appellees, denying his tort claims resulting from an automobile accident on April 30, 1974. The accident occurred when plaintiff, driver of a 1964 Volkswagon, attempted to pass Sterling’s farm tractor driven by Dauphine on Louisiana Highway 317, a hard surface road from Bayou Sale to Franklin, Louisiana. Both vehicles were west-bound at the time the passing maneuver was attempted and the collision occurred as the tractor was making a left turn onto a field road.

The case was tried by a jury who found defendants negligent and plaintiff contribu-torily negligent or that plaintiff had the last clear chance to avoid the accident. After the Trial Court denied his motion for a new trial, plaintiff perfected this devolutive appeal. The defendants neither appealed nor filed an answer to the appeal.

Since no appeal was taken from the finding by the jury that the defendants were negligent, we need only consider what duty the plaintiff owed to Dauphine in attempting to pass the tractor he was driving and whether the record contains evidence to establish that the duty was breached by the plaintiff.

The principle of appellate review applicable to this case is to determine if there is any evidence of record which furnishes a reasonable basis for the jury’s findings. The factual findings of the jury should not be disturbed on appeal in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

At the point of collision there was no impediment to the execution of a passing maneuver. There were no traffic control devices in the area, no road markings on the pavement, and the field road onto which the tractor attempted to turn was not an intersection within the meaning of La.R.S. 32:76.A.(2). The only conduct on the plaintiff’s part which would have constituted negligence would be for him to have attempted the passing maneuver without observing obvious indications from the tractor driver of his intent to do something other than remain in his lane or for him to have attempted the passing maneuver in a manner which is commonly described as a “rapid overtaking.”

The jury could well have believed Dau-phine’s version of the accident, which was that he was traveling about 22 miles per hour as he approached the area where he intended to make a left turn; that as he neared the field road, he looked back and saw the Bodin vehicle behind him and decelerated until he came to a stop near the field road; that upon looking back again he saw the Bodin vehicle stopped behind the tractor; that he then shifted the tractor to first gear and started to execute his turn at which time he noticed the Bodin vehicle on his left side and cut his wheel in the opposite direction.

Despite his efforts, the right front and side of the Bodin vehicle came in contact with the left front wheel of the tractor. The physical evidence favors this version of the accident because Bodin’s vehicle came to rest only thirty feet from the point of impact after the collision. Apparently, both drivers began to pull unto the left lane at approximately the same time, the Volks-wagon accelerating at a greater rate than the tractor. Both drivers would therefore be negligent and the doctrine of last clear chance would not be applicable because neither driver would be able to act effectively to avoid the accident. Johnson v. Wilson, 239 La. 390, 118 So.2d 450 (1960).

Bodin’s version of the accident is completely different. He, his passenger, and another witness deny that Bodin ever stopped behind the tractor. Generally, their testimony is that Bodin pulled into the left lane after giving a hand signal and was passing the tractor at 45 miles per hour when the tractor turned into Bodin’s vehicle. There is sufficient evidence in the record from which the jury could have concluded that the manner in which Bodin executed his passing maneuver constituted a “rapid overtaking” and that Bodin was negligent in not exercising the care required under the circumstances. In Morgan v. Lumbermen’s Mutual Casualty Company, 317 So.2d 7 (1st Cir. 1975), this court held:

“As a general rule, the driver of an overtaking vehicle, upon approaching another one from the rear is under a duty to exercise a great deal of care in keeping a lookout and to make certain that no change of course of the preceding vehicle is indicated. Burns v. Evans Cooperage Co., 208 La. 406, 23 So.2d 165 (1945); Jones v. Lungaro, 231 So.2d 60 (La.App. 1st Cir. 1970); Evans v. Thorpe, 175 So.2d 418 (La.App. 2nd Cir. 1965).”

We find no manifest error in the judgment of the District Court and, therefore, affirm its decision.

AFFIRMED.


text:
    Hosea L. HENRY, Chairman, Louise Singleton, Secretary, and Robert Henderson, Member, Macedonia Missionary Baptist Church v. Reverend David NEWMAN, Jr.
    No. 11529.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.

      Ralph L. Roy, Baton Rouge, of counsel for plaintiffs-appellants, Hosea L. Henry, Chairman, Louise Singleton, Secretary and Robert Henderson, member, Macedonia Missionary Baptist Church.
    Murphy W. Bell, Baton Rouge, of counsel for defendant-appellee, Rev. David Newman, Jr.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

This is a suspensive appeal of a judgment of the Trial Court sustaining an exception of lack of jurisdiction, dismissing plaintiffs’ petition and dissolving the Temporary Restraining Order previously issued.

Hosea L. Henry, Louise Singleton, and Robert Henderson, plaintiffs-appellants, filed a petition for an injunction and for an accounting of church funds and property against defendant-appellee, Rev. David Newman, Jr., Pastor of the Macedonia Missionary Baptist Church (Church) located in Baton Rouge, Louisiana. Plaintiffs sought and obtained a temporary restraining order against defendant, restraining and enjoining him from withdrawing funds from the accounts of the Church in two Baton Rouge banks, and from removing pews, benches, furniture and fixtures from the Church’s building.

The plaintiffs in their petition complained that defendant, without complying with the Church’s rules and regulations and/or the Articles of Incorporation, was changing the Church’s location from 1251 Spain Street, Baton Rouge, to the 2800 block of Wyan-dotte Street, Baton Rouge.

To plaintiffs’ petition, defendant filed Exceptions of No Right or Cause of Action, Non-Joinder of Indispensable Parties, Prematurity and Lack of Jurisdiction Over the Subject Matter, along with a Motion to Dissolve the Temporary Restraining Order and a Motion for Attorney Fees and Expenses.

The Trial Court, without written reasons, sustained the Exception of Lack of Jurisdiction of the Subject Matter and dissolved the Restraining Order, but did not rule on the other exceptions or the other motions filed by defendant.

Plaintiffs perfected an appeal from said judgment and defendant filed an answer to the appeal seeking to amend said judgment to include attorney fees for trial and appellate representation and, as amended, affirmed.

Plaintiffs thereafter filed a motion to dismiss the answer to the appeal filed by defendant on the ground that defendant possessed no right of appeal because no part of the judgment is against defendant and in favor of the plaintiffs, citing C.C.P. Art. 2133.

The exception of jurisdiction is based on the premise that the controversy is purely a church or religious matter and, therefore, under the First and Fourteenth Amendment of the U.S. Constitution, Civil or Secular Courts have no jurisdiction to intrude and decide this controversy.

Plaintiffs on appeal contend that:

“The Trial Judge erred in failing to accept jurisdiction over the subject matter of the issues as averred in plaintiff’s petition.”

In brief and in argument before this Court, plaintiffs concede that it is “well settled that courts will not deal with spiritual or ecclesiastical matters pertaining to incorporated religious societies . . .,” but contend that “. . . it is equally well recognized that courts may and should deal with property rights involving such societies.”

While we agree with this contention, a careful review of the pleadings herein reveal that there are no property rights in dispute.

All parties agree that the accounts and other properties listed belong to the Church, an incorporated institution not a party to this litigation. Plaintiffs filed this suit in their individual capacities and not as agents of the Church, even though they did use a title designation after their individual names. Plaintiffs do not claim to be the owners, lessees, or trustees of the listed properties, nor do they, in opposition to the Church, claim to be entitled to the use or possession of said property. Actually, they seek in this suit to prevent the Church from changing its location. The question of where church services are to be held is purely an ecclesiastical decision not subject to review by civil courts. It is a decision solely within the discretion of the governing body of the Church.

Further, church members are not entitled to rely on the incorporation of a church under state laws as the basis for resort to the courts for redress of allegedly violated rights, if these rights require a determination of ecclesiastical matters. See Serbian Eastern Orthodox Diocese For United States of America and Canada et al. v. Milivojevich et al., 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976).

The motion of plaintiffs to dismiss the answer to the appeal filed by defendant is denied. C.C.P. Art. 2133. Though the judgment does not specifically state “the defendant,” it is clear that the judgment was in favor of defendant and against the plaintiffs.

As to defendant’s claim for attorney fees, besides the procedural deficiency, there is no evidence in the record that the attorney fees have actually been paid, or that an obligation has been incurred to pay such fees. Further, the Trial Court made no adjudication of the value of the attorney’s services. Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956). Burglass v. Villere, 170 La. 805, 129 So. 209 (1930). We reserve unto defendant any rights he may have in this regard.

All costs are assessed against plaintiffs.

AFFIRMED.


author: LOTTINGER, Judge. PONDER, Judge,

text:
    Roger GUIDRY et al. v. Leo TOUPS et al.
    No. 11537.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Writ Refused Jan. 11, 1978.

      Leslie J. Clement, Jr., Boudreaux & Clement, Thibodaux, for plaintiffs and appellants.
    Herbert O’Niell, Thibodaux, for defendant and appellee Leo Toups.
    Stanley L. Perry, Galliano, for defendant and appellee Harris Pitre.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto involving two separate causes of action, one by the plaintiffs Roger Guidry, individually and as the tutor of the minor Mandy Guidry, Wayne Guidry and Hazel Guidry Bourgeois, as the heirs of Cyric Guidry for his wrongful death, and a second cause of action by Wayne Guidry for his personal injuries. The defendants are Leo Toups, and Harris Pitre, d/b/a The Stagecoach Lounge. From a judgment in favor of the defendants, plaintiffs have appealed.

The record points out that the deceased, Cyric Guidry, his son, Wayne Guidry, and a friend, Brenda Boudreaux, together went to the Stagecoach Lounge, owned by the defendant Harris Pitre, in Galliano, Louisiana, on the night of November 23, 1974, for the purpose of socializing and attending a dance. The defendant Leo Toups and his wife were also in attendance. As the evidence unfolds in the record, it seems that Brenda Boudreaux told at least Cyric Gui-dry that Leo Toups had been harassing her during the night. Sometime after midnight as the decedent, his son, and Ms. Boudreaux were leaving the lounge, the three were momentarily separated with the decedent standing at the bar in the lounge, and Ms. Boudreaux standing at the exit door awaiting the decedent and his son. While at the door Leo Toups and his wife approached also leaving. Ms. Boudreaux testified that Leo Toups made a threatening gesture to her, as if to strike her with his hand, whereupon the decedent seeing this walked over to the defendant, Leo Toups, and struck him in the face with his fist, causing him to fall back against a wall, and then to the floor. Upon seeing this, Harris Pitre, the owner of the Stagecoach Lounge, came from behind the bar and according to his testimony told both the decedent and the defendant Toups that he wanted no fighting in his establishment and that both should leave.

The defendant Toups left through the front door with one Vinton Crosby, the son-in-law of Harris Pitre, and went out into the front parking area of the lounge. The decedent remained in the lounge. As this bizarre series of events unfolds, a few moments later Leo Toups returned to the lounge and stabbed the plaintiff, Wayne Guidry. Wayne Guidry contended in his testimony that when he saw Leo Toups returning and walking towards his father he attempted to intercept him simply to quieten him down so that there would be no trouble. He did not hit nor attempt to hit him, but rather was pushed against a wall by Toups and stabbed. Another witness, however, testified that he separated Wayne Guidry and Leo Toups who he found in a crouched position punching at each other. It was immediately after he separated these two and Leo Toups left the lounge for the second time that Wayne Guidry exclaimed that he had been stabbed.

Lastly, the decedent Cyric Guidry and the defendant Leo Toups are seen in the front parking lot by the defendant, Harris Pitre, through the opened front door of the lounge, fighting. Vinton Crosby testified that Leo Toups had a knife in his hand when the two were fighting in the parking lot.

After the initial encounter an attempt was made to phone the sheriff’s office by use of the pay phone in the lounge. This was found to be inoperative, and Harris Pitre proceeded to his house which was located to the rear of the lounge for the purpose of calling the sheriff’s office. In addition, his son-in-law, Vinton Crosby, proceeded to his own house for the purpose of calling the sheriff’s office. Pitre testified that he left to call the sheriff’s office while Leo Toups and the decedent were still fighting in the parking lot, and Crosby testified that he saw the two fighting in the parking lot as he left to go to his own house to call the sheriff’s office.

Ás a result of the fight between Leo Toups and Cyric Guidry in the parking lot, Cyric Guidry received wounds sufficient to cause his death.

The Trial Judge in his written reasons for judgment said “Because of the serious nature of this case, and because it arose out of a fast-moving, emotionally charged series of events in which there are great possibilities for confusion and error on the part of the witnesses, this Court was particularly attentive to the demeanor of the witnesses.” The Trial Judge in his findings of facts stated that the testimony of Brenda Boudreaux was “not worthy of belief”, and that “Wayne Guidry’s testimony basically parallels that of Brenda Boudreaux on most points and is at its best suspect.”

The Trial Judge continued,

“This matter involves three separate fights. Two fights were started by Cyric Guidry striking Leo Toups. How the third fight started, no one knows. Neither the plaintiffs’ nor defendants’ witnesses could testify who started the fight on the outside of the Stage Coach Inn. Since Cyric Guidry had in fact started the other two fights, it is reasonable to assume that he was also the aggressor in the third fight.
“The Court finds, as a matter of fact, that Cyric Guidry had ho reason or justification to attack Leo Toups. The Court further finds that Leo Toups did not use excessive force in the defense of his person against either Wayne or Cyric Gui-dry.”

In appealing, the plaintiffs contend that the Trial Judge erred (1) in finding that Cyric Guidry was not justified in punching Leo Toups in defense of Brenda Boudreaux; (2) in concluding that Leo Toups could not be held legally responsible to the plaintiffs because he was unable to consciously formulate an intent to act; (3) in finding that Leo Toups did not use excessive force against Cyric and/or Wayne Guidry; (4) in concluding that Harris Pitre, owner of the lounge, took every reasonable precaution to protect his guest; and (5) assuming, ar-guendo, that Cyric Guidry was partially responsible for causing his own death, the Court erred in concluding that his beneficiary heirs are thereby precluded from recovering damages for their father’s wrongful death.

ERROR NO. 1

Brenda Boudreaux was the only witness to testify that the defendant Leo Toups raised his hand in a threatening manner to her. Considering that the Trial Judge found her testimony to be without belief, we find no error in his conclusion that the decedent was not justified in punching Leo Toups in defense of Brenda Boudreaux.

ERROR NO. 2

This specification of error is directed primarily to the testimony of Dr. Richard Dawes, a psychiatrist, who testified that from his examination of Leo Toups, he was of the opinion that the defendant was suffering from traumatic amnesia, and that following the first blow struck, the defendant was operating on pure “animal instinct.”

The Trial Judge in his written reasons for judgment did conclude that because of the testimony of the psychiatrist that the defendant could not be held legally responsible to the plaintiffs. However, the Trial Judge in his written reasons for judgment prior to his discussion of the expert testimony had already concluded as a matter of fact that the decedent had no reason or justification to attack the defendant Toups, and that the defendant did not use excessive force in defense of his person against either the plaintiff Wayne Guidry or the decedent Cyric Guidry. The Trial Judge had already concluded that the defendant Leo Toups was not at fault, and any discussion of the testimony by the psychiatrist was merely an additional reason on the part of the Trial Judge for finding the defendant not liable. Considering the great weight that must be given to the findings of fact by the Trial Judge, and our conclusion that he has made no error in his findings of fact, nor in his determination that no excessive force was used, we find no need to discuss this specification of error.

ERROR NO. 3

When the defendant Toups returned to the lounge after the first blow was struck, he testified that he returned to find his wife who was still inside. He had just been knocked to the floor with one punch by Cyric Guidry who was some 60 pounds lighter and 6 inches shorter. As he enters the lounge the second time, he is approached by Wayne Guidry. Ray Picou, a disinterested witness, testified that he separated Wayne Guidry and Leo Toups from a crouched position punching each other. Therefore, we have the defendant entering the lounge to find his wife, and he is approached by Wayne Guidry and punches are thrown. Considering that Cyric Guidry was still in the lounge at this time, that Leo Toups had been felled by one punch from the smaller Cyric Guidry and that he now found himself in a fight with the decedent’s son, we find no error on the part of the Trial Judge in apparently concluding that Leo Toup feared for his bodily safety, and thus was justified in resorting to the use of a pocket knife for his protection which resulted unfortunately in the stabbing of Wayne Guidry.

ERROR NO. 4

Plaintiffs contend that the defendant Pi-tre as the owner of the Stagecoach Lounge was negligent in not having an operative telephone available for the purpose of calling the police when he should have known that the single pay phone in the lounge was often out of order, or, he should have employed an individual or individuals qualified and equipped to deal with disturbances caused by patrons while waiting for the police to arrive.

It is well recognized that a proprietor of a public house of entertainment, though not an insurer of the safety of his guest, owes the duty to exercise reasonable care to protect them, both in person and property, from injury at the hands of fellow guest or guests, De Hart v. Travelers Ins. Co., 10 So.2d 597 (La.App. Orl.Cir. 1942), and that a lounge proprietor has a duty to telephone the police for assistance when there is time to do so, Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir. 1976).

We have been referred to no authorities by the appellants that would mandate that the defendant Harris Pitre have either a working telephone in his premises or a “bouncer”.

The Trial Judge from his findings of fact concluded that the defendant Pitre did everything reasonably expected of him. After the first punch was thrown, Pitre told both the decedent and Toups that he wanted no fighting and they should leave. The Trial Judge apparently found that Pitre attempted to call the sheriff’s office within sufficient time, and ultimately request for police assistance was made. We find no error in this holding of the Trial Judge.

Further, we do not view the rules as expressed in De Hart, supra, and Borne, supra, as applying to a plaintiff who is the aggressor in a fistic encounter. Here the Trial Judge found the decedent to be the aggressor and we find neither of these two cases to be applicable.

ERROR NO. 5

Inasmuch as we have concluded that there was no actionable fault on the part of either of the defendants, there is no need to discuss this specification of error.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed. All costs are to be paid by plaintiff s-appellants.

AFFIRMED.

PONDER, Judge,

dissenting.

I do not quarrel with the finding of fact by the trial judge since it was based on his appraisal of the credibility of the witnesses, testifying to contradictory versions. I cannot agree, however, with the conclusion that “Leo Toups did not use excessive force in the defense of his person against either Wayne or Cyric Guidry”.

Mr. Toups had the advantage of six inches height and evidently comparable reach over both Guidrys and sixty pounds over one and ninety pounds over the other. There is no evidence that either Guidry used a weapon of any kind. Toups’ use of a knife to maim one and kill another seems to me clearly to be excessive force.

I cannot agree with the use of a psychiatrist’s testimony of an absence of consciousness as being a reason for no liability. See Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir., 1976), writ refused La., 341 So.2d 1134 (1977). The case of Yancey v. Maestri (La.App. Orl.Cir., 1934), 155 So. 509, cited by the trial judge, seems to me to be both inapplicable and of doubtful continuing validity.

I therefore dissent.


author: ELLIS, Judge. LANDRY, Judge,

text:
    I. I. ROSEN v. Walter REED et al.
    No. 11540.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Concurring Opinion Nov. 21, 1977.
    Rehearing Denied Nov. 21, 1977.

      Jack Peebles, New Orleans, for I. I. Ro-sen, plaintiff appellant.
    Ben W. Lightfoot, Baton Rouge, for Walter Reed, defendant appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ. “
   ELLIS, Judge.

This is an appeal by plaintiff I. I. Rosen from a judgment dismissing his suit for damages for defamation against Walter Reed and Interstate Fire & Casualty Company, his insurer.

On November 20,1973, Mr. Reed, a deputy sheriff and detective in the narcotics division of the Tangipahoa Parish Sheriff’s Office, was guest speaker at a meeting of the Amite Rotary Club. There were about 30 people present. Mr. Reed’s subject was “Narcotics in Tangipahoa Parish”.

The membership of the Amite Rotary Club, according to the testimony, consists of “all of the old successful business men in the area” a number of whom “had children in that age bracket who were highly susceptible of (narcotics) use, principally of marijuana.”

At the close of Mr. Reed’s presentation, he was asked how narcotics could be controlled in the area. According to plaintiff’s only witness, he replied that “the only way you can control it is to stop the distribution of it and Dr. I. I. Rosen is one of the principal distributors of hard narcotics in this area and you would have to get rid of him.”

Mr. Reed testified that, in response to question asked him at the meeting, he stated that he “felt that Dr. Rosen was one of the people that was responsible in a large part to the drug problem that we had.” He further testified that he tried to make it clear that Dr. Rosen was not involved in any drugs other than “pills, amphetamines and barbiturates and so forth.” He further stated that he said that Dr. Rosen was selling “drugs which could possibly be legal if they were administered properly, but the fact (was) that they were being administered improperly and illegally.”

He testified that what he said about Dr. Rosen was true, and that his belief was based on information gained while a narcotics officer in New Orleans and, later, as a deputy sheriff in Tangipahoa Parish. He further stated that he bore no malice or ill will toward Dr. Rosen, with whom he was not acquainted at the time he spoke to the Rotary Club. In explaining why he made the statement, Mr. Reed said:

“We had a serious problem here, and the people that were there were responsible business people. They were the leaders of the community and I thought that they had a lot of influence in the community and I thought by saying these things that, perhaps, some public good could come of it.”

In Ward v. Sears, Roebuck & Co., 339 So.2d 1255 (La.App. 1st Cir. 1976), we said:

“An action for libel and slander falls within the ambit of LSA-C.C. Article 2315, our general tort law. Our jurisprudence establishes that in an action of this nature proof of the following elements are necessary for recovery: (1) Defamatory words; (2) Publication, meaning communication to one other than the party defamed; (3) Falsity; (4) Malice, actual or implied; and (5) Resulting injury.”

In the absence of some privilege, absolute or qualified, in favor of defendant, malice and injury will be implied if the defamatory remarks are found to be false. The burden of proving the truth of the defamatory statements falls on the defendant. Ford v. Jeane, 159 La. 1041, 106 So. 558 (1925); Comment, 28 La.Rev. 82 (1967). No serious effort was made to prove that the statements made by Mr. Reed about Dr. Rosen were true. It follows that, unless the defamatory remarks made by Mr. Reed are conditionally or qualifiedly privileged, Dr. Rosen is entitled to recover.

In Toomer v. Breaux, 146 So.2d 723 (La.App. 3rd Cir. 1962), the court said:

“In other more numerous instances, a publication enjoys a ‘qualified’ or conditional privilege, applicable if the communication is made (a) in good faith, (b) on any subject matter in which the person communicating has an interest or in reference to which he has a duty, (c) to a person having a corresponding interest or duty. This privilege arises from the social necessity of permitting full and unrestricted communication concerning a matter in which the parties have an interest or duty, without inhibiting free communication in such instances by the fear that the communicating party will be held liable in damages if the good faith communication later turns out to be inaccurate.”

It is also true that the defense of qualified privilege does not extend to a publication to the general public. Whittington v. McGraw-Hill, Inc., 294 So.2d 288 (La.App. 1st Cir. 1974).

Although we do not equate a publication to a civic organization, such as the Rotary Club, to be a publication to the general public, neither can we agree with the trial judge that such an organization has an interest or duty corresponding to that of a law enforcement official. As we said in Whittington v. McGraw-Hill, supra:

“The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty.”

We find that no such necessity exists in this case, and that the natural interest of the general citizenry in good law enforcement is not such an interest as will give rise to the qualified privilege claimed by defendants in this case.

Dr. Rosen testified that, when he learned of the defamatory remarks, his blood pressure went up and he suffered from dizziness for about ten days thereafter. He stated he was unable to keep “total office hours” during that period. He said that he was all right thereafter, except for occasional dizzy spells, until July, 1974, when he was indicted and arrested. After that event, he was hospitalized at Ochsner Hospital for two and one-half weeks. He was once again suffering from dizziness and a paralysis of the right cheek. He was of the opinion that this difficulty was “closely related” to the defamation which took place in November, 1973. He testified that he had suffered financial loss of some $6,000.00 because of his 1974 illness, plus close to $600.00 in medical expenses.

He offered no evidence, documentary or otherwise, in support of the testimony detailed above, and could not show any specific financial loss resulting from the defamation.

Neither did he offer any evidence to show that his reputation in the community suffered as a result of the remarks made by Mr. Reed.

We find the evidence relative to the medical consequences of the defamation to be self serving and unconvincing, and do not believe that the special damages claimed, even if due, have been proven with the certainty required by law.

However, we find that Dr. Rosen is entitled to nominal damages of $1,500.00 for all injuries suffered as a result of the defamation.

The judgment appealed from is therefore reversed and set aside and there will be judgment herein in favor of plaintiff I. I. Rosen, and against defendants, Walter Reed and Interstate Fire & Casualty Company, in solido, in the sum of $1,500.00 together with legal interest from judicial demand until paid, and all costs of these proceedings.

REVERSED AND RENDERED.

LANDRY, Judge,

concurring.

Although I agree with the majority result and reasoning, it is my opinion that the decision should consider and explain the effect of the United States Supreme Court’s interpretation of the First Amendment as set forth in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Initially, it may appear that the majority holding herein is in conflict with the Gertz ruling that in defamation cases, the states must apply a standard requiring more proof on plaintiffs part than strict liability.

It is my opinion, however, that Gertz is inapplicable to the case at bar because the Supreme Court indicated that the protection afforded by Gertz extends only to news media defendants. For a most comprehensive, scholarly treatment of all aspects of Gertz, see Robertson, Defamation and the First Amendment: In Praise of Gertz v. Robert Welch, Inc., 54 Tex.L.Rev. 199 (1976).

I respectfully concur.


author: LOTTINGER, Judge.

text:
    Succession of Louis J. MOHANA, Sr. Joy Mohana SONNIER, Plaintiff in Rule and Appellant v. Mae Dora Trahan MOHANA, Louis J. Mohana, Jr., and Jean Carol Mohana Giglio, Defendants in Rule and Appellees.
    No. 11541.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.

      Thomas D. Brumbaugh, Lafayette, for plaintiff in rule and appellant.
    Kenneth W. Ford, Morgan City, for defendants in rule and appellees.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit by plaintiff-in-rule, Joy Mohana Sonnier, to have a trust created in the Last Will and Testament of her deceased father, Louis J. Mohana, Sr., declared invalid, null and void for failure to include all of the forced heirs within its terms and conditions; to have all proceedings in the succession declared invalid, null and void for failure to adhere to the provisions of LSA-C.C.P. art. 3031; to have the judgment of possession declared invalid, null and void; to have the succession reopened for further proceedings; to have a public inventory taken of the property of the decedent; and to have the defendant-in-rule Mae Dora Trahan Mohana, the sole named trustee of the trust created in the Last Will and Testament declared incompetent as a trustee and disqualified and removed as such retroactive to the time that the trust came into existence and that all of her acts as trustee be declared to be without legal force and effect.

The Trial Judge has very adequately set forth the facts in this proceeding to wit:

“The decedent was married twice, first to the mother of the petitioner herein, from whom he was divorced, the petitioner herein being the sole issue of that marriage, and secondly to Mae Dora Mohana, there being two major children born as a result of that union. The decedent was survived by his three children and by Mae Dora Mohana. The decedent left a Last Will and Testament in notarial form wherein he bequeathed to his surviving widow the disposable portion of all of the property which he owned at the time of his death and he confirmed her usufruct upon the two-thirds of the legitime of his estate inherited by the children of his second marriage. In the event of his wife predeceasing him, the decedent bequeathed the disposable portion of his estate to the children of his second marriage. With reference to the legitime belonging to his children, the decedent bequeathed one-third to his son by his second marriage, one-third to his daughter by his second marriage, and the remaining one-third to his daughter by his first marriage, Mrs. Sonnier; however that was bequeathed to her through his surviving widow Mae Dora Mohana as trustee for Mrs. Sonnier. The trust as set forth in the Will is for the life of Mrs. Sonnier and the terms provide that the trustee shall pay the income of the trust to the beneficiary at each quarter; the interest of the beneficiary in the trust was made subject to the maximum restraint on alienation permitted by Louisiana law, the trustee was relieved of proving [sic] bond or any security, the trustee was relieved from all liability in connection with the administration of the trust except liability for gross misconduct, and in the event that the trustee declined, failed to qualify or died or ceased to act for any reason, then Louis J. Mohana, Jr., a child of the second marriage, was named as trustee.”

The defendants-in-rule filed exceptions of no right and no cause of action which were overruled by the Trial Court. The Trial Judge in his written reasons for judgment in dismissing the petition of Mrs. Joy Moha-na Sonnier said:

“While in the Court’s opinion the action of the testator constitutes a de facto infringement on the right of forced heir-ship, a blatant and obvious attempt to favor the second wife and the children of the second marriage over the child born of the first marriage, and an effective suspension of the right of Mrs. Sonnier to derive any benefit whatsoever from the property which she must inherit from her father, nevertheless the testator, in the Court’s opinion, has accomplished his purpose within the limits of the law. Quite Frankly, the Court would be most happy to have any Appellate Court reverse this judgment, declare the entire proceeding invalid and proceed to do what in this Court’s opinion equitably should be done. Unfortunately, this Court can find no legal basis for doing the equity which should be done in this case. Hopefully some Appellate Court will.”

In appealing the appellant assigns the following specifications of error:

“1. The trial court committed reversible error in not finding that the trust established by the last will and testament of LOUIS J. MOHANA, SR., was invalid, null and void, on the grounds that it did not place the legitime of all of the forced heirs in trust.
“2. The trial court committed reversible error in not finding, in the alternative, that the designated trustee of the trust established by the last will and testament of LOUIS J. MOHANA, SR., was a legally incompetent trustee, automatically disqualified from serving as such and any and all of her acts as trustee without legal force or effect on the grounds that said trustee was the sole named trustee, that for all intents and purposes said trustee was a beneficiary of the trust, and that said named trustee was an owner in her own right of substantial and virtually inseparable interest in the trust property.
“3. The trial court committed reversible error in not finding, in the second alternative, proper cause to order the reopening of the succession of Louis J. Mohana, Sr., and for the taking of a public inventory, on the grounds that the sworn descriptive list used in said pleadings is suspect on its face.”

SPECIFICATION OF ERROR NO. 1

Art. IV, § 16, La.Const. (1921) provides in part:

“No law shall be passed abolishing forced heirship; but the legitime may be placed in trust to the extent authorized by the Legislature.”

The Legislature by LSA-R.S. 9:1841 in part has provided that “the legitime or any portion thereof may be placed in trust * We interpret this language to mean that not all of the legitime or forced portion of a succession must be placed in trust, if any is to be, but “any portion thereof”.

Appellant argues that a class trust was created, LSA-R.S. 9:1893, and thus all of the forced portion must be placed in trust. We do not agree. Separate bequests were made to Louis J. Mohana, Jr. and Mrs. Jean Carol Giglio, subject to the usu-fruct in favor of their mother. It is only the bequest made to plaintiff-in-rule that a trust is mentioned. LSA-R.S. 9:1893 allows the creation of a class trust, but it does not mandate such, nor do we find that such a trust was even intended by the express terms of the Last Will and Testament.

SPECIFICATION OF ERROR NO. 2

Appellant argues basically that the trustee, Mrs. Mae Dora Mohana, is disqualified from acting as trustee because of LSA-R.S. 9:1784 and R.S. 9:2094.

The trustee is certainly not the set-tlor nor is she a beneficiary of the trust and thus she is not disqualified under LSA-R.S. 9:1784.

LSA-R.S. 9:2094 is not one of the qualifications that must be met to be appointed a trustee. Plaintiff-in-rule attacks the original qualifications of the trustee, however, we feel that this section is not applicable.

SPECIFICATION OF ERROR NO. 3

Lastly, appellant argues that under LSA-C.C.P. 3393 B the succession should have been reopened because of obvious errors appearing on the face of the sworn descriptive list.

Whether a succession will be reopened or not is within the sound discretion of the Trial Court. Danos v. Waterford Oil Co., 225 So.2d 708 (La.App. 1st Cir. 1969), writ refused, 254 La. 856, 227 So.2d 595 (1969).

Considering that the Trial Judge reviewed in detail the evidence and arguments presented, his feelings as to the outcome and pleading that an appellate court reverse, we cannot say that he abused that discretion vested in him in refusing to reopen the succession.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed; appellant to pay all costs.

AFFIRMED.

      . Last Will and Testament dated February 14, 1974.

      . Testator died October 20, 1974.

      . This provision is preserved in Art. XII, § 5, La.Const. (1974) which now reads as follows:
      “No law shall abolish forced heirship. The determination of forced heirs, the amount of the forced portion, and the grounds for disin-herison shall be provided by law. Trusts may be authorized by law, and a forced portion may be placed in trust.”

      . “I will and bequeath, subject to the usufruct hereinabove established, to my son, Louis J. Mohana, Jr., an undivided one-third of all of the rest of the property which I will own at the time of my death.”

      . “I will and bequeath, subject to the usufruct hereinabove established, to my daughter, Mrs. Jean Carol Giglio, an undivided one-third of all of the rest of the property which I will own at the time of my death.”

      . “I will and bequeath, to Mrs. Mae Dora Mo-hana, as Trustee, to hold in trust for the benefit of my daughter, Mrs. Joy M. Sonnier one-third of all of the rest of the property which I will own at the time of my death.”

      . LSA-R.S. 9:1784 provides:
      “There must always be one trustee who is neither a settlor nor a beneficiary, but if there are two or more trustees the others may be settlors or beneficiaries of the trust.”

      . LSA-R.S. 9:2094 provides:
      “A trustee shall keep the trust property separate from his individual property, and, so far as reasonable, keep it separate from other property not subject to the trust, and see that the property is designated as property of the trust, unless the trust instrument provides otherwise.”

      . LSA-C.C.P. 3393 B provides:
      “After tacit or express acceptance by the heirs or rendition of a judgment of possession by a court of competent jurisdiction, if other property is discovered, or for any other proper cause, upon the petition of any interested person, the court, without notice or upon such notice as it may direct, may order that the succession be opened or reopened, as the case may be, regardless of whether or not, theretofore, any succession proceedings had been filed in court. The court may appoint or reappoint the succession representative, if any, or may appoint another, or new, succession representative. The procedure provided by this Code, for an original administration, shall apply to the administration of successions tacitly or expressly accepted by heirs and in successions where a judgment of possession has been rendered, in so far as same is applicable.


text:
    ETHYL CORPORATION v. COLLECTOR OF REVENUE.
    No. 11543.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.
    Writ Refused Jan. 11, 1978.

      Terry D. Hubbs, Baton Rouge, of counsel for plaintiff appellee, Ethyl Corp.
    Robert R. Rainer, David L. Dawson, Jr., Allen J. Bergeron, Jr., Baton Rouge, of counsel for defendant appellant, Collector of Revenue.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This case presents only a question of law, namely, the construction and/or interpretation to be given to LSA-R.S. 47:7, as amended by Act 12, 1973 Extraordinary Session.

The facts are not in dispute. Ethyl Corporation (Ethyl) owns and operates a plant in East Baton Rouge Parish, Louisiana. Gulf States Utilities Company (GSU) also owns and operates a plant approximately 1,000 feet from Ethyl, which GSU plant burns natural gas in the creation of steam and in the generation of electricity, which is sold to only two customers, Ethyl and the Exxon Corporation. Contracts exist between GSU and Ethyl.

Contractually, Ethyl is required to furnish GSU natural gas, and if natural gas becomes unavailable, then merchantable fuel oil, to be used and consumed by GSU in firing its boilers in the creation of steam and the generation of electricity which are both subsequently sold to Ethyl. The essence then is that Ethyl furnishes natural gas to GSU, and in return, GSU furnishes steam and electricity to Ethyl.

Ethyl does not charge for the quantity of natural gas and/or fuel oil delivered to GSU, but if Ethyl’s supply of natural gas is interrupted or curtailed, and GSU burns fuel oil from its own storage, Ethyl shall pay GSU for the substitute fuel oil. We conclude from reading the contracts that the price GSU charges Ethyl for the steam and electricity directly takes into consideration the quantity of natural gas supplied by Ethyl. Stated another way, the normal charge for the steam and electricity sold to Ethyl is reduced proportionately by the quantity of natural gas furnished.

Prior to the repeal of Act 12 of 1964, Regular Session, GSU was entitled to and claimed a tax credit under the then Natural Gas Tax Credit Statute. However, Act 12 of 1972, Regular Session, redefined who was eligible for the credit and limited this credit to “a plant or establishment owned by a municipality which engages in the generation of electric power for resale; * * At the same time GSU was receiving this tax credit, it was also subject to the tax on sale and generation of electricity. This tax, however, was repealed by Act 9, of 1973, Extraordinary Session, effective January 1, 1974. During the same legislative session, the definition of manufacturing establishment as found in LSA-R.S. 47:7 D(l) was redefined to again include a “plant or establishment” though not limiting ownership to a municipality, with the proviso that “it shall not include * * * a plant or establishment owned or operated by any person, firm or corporation that was subject to the payment of the tax on the generation or sale of electricity (R.S. 47:1061-1072).”

Thus it can be seen that during the time between the enactment of Act 12 of 1972, Regular Session, and Act 12 of 1973, Extraordinary Session, neither 'GSU nor Ethyl was eligible to apply for the credit for neither was a municipality. However, with the enactment of Act 12 of 1973, Extraordinary Session, though GSU was still not eligible, Ethyl became eligible because of the removal of the municipally owned requirement; GSU still being ineligible because it had been subject to the tax on sale or generation of electricity. Therefore, on October 14, 1974, Ethyl pursuant to LSA-R.S. 47:7 as amended by Act 12 of 1973, Extraordinary Session, filed an application for a tax credit for the period January 1, 1974, through September 30, 1974, in the amount of $93,738.40.

On December 6, 1974, the Collector of Revenue recognized that Ethyl was entitled to a portion, $23,366.40 of the total tax credits claimed by it and issued a tax credit warrant. It denied the balance of the request on the grounds that the natural gas for which Ethyl was claiming the credit was not in' fact “used or consumed” by Ethyl, but was in fact used and consumed by GSU.

Ethyl appealed to the Board of Tax Appeals the Collector’s denial of the application and the Board of Tax Appeals without written reasons upheld the decision of the Collector of Revenue. A judicial review of the Board of Tax Appeal’s judgment was perfected in the Trial Court which reversed the judgment of the Board of Tax Appeals and rendered judgment in favor of Ethyl, from which judgment the Collector has perfected this appeal.

In appealing, the Collector contends that the Trial Judge erred in (1) considering the affidavits of two state legislators over the objection of the Collector; (2) in not applying LSA-R.S. 47:7 D(2)(d) which provides that gas used or consumed shall not include, “Gas, any part of which is resold by the manufacturing establishment * * and (3) in concluding that Ethyl “uses” natural gas in the operation of its manufacturing establishment within the state of Louisiana.

ERROR NO. 1

In his written reasons for judgment the Trial Court said:

“[T]he Court finds persuasive the testimony of two members of the legislature at the time of passage of this act, particularly that of Representative Kevin P. Reilly who was the co-sponsor of Act 12, Section 1. Mr. Reilly testified in regards to this act, that the legislature ‘felt that the language was sufficiently broad to include any and all industrial concerns with the State of Louisiana who purchase and use or consume natural gas, either directly or indirectly and in any matter for the operation of their manufacturing establishment in furtherance of the economy of Louisiana . . . ’. He went on to state that only ‘out-of-state’ users were intended to be deprived of this tax credit.” (Emphasis by the Trial Court.)

It is apparent from the above quoted portion of the written reasons for judgment that the Trial Judge relied heavily on the testimony of Representative Reilly and his conclusions and interpretations of Act 12 of 1973, Extraordinary Session. We find the Trial Judge was in error.

In its constitutional role, it is the function of the judicial branch of government to interpret the construction to be given legislative acts, and it does not lie within the domain of the legislature or legislators to interpret their own acts. The court must perform its function of interpretation without the aid of the legislature or legislators. State v. Sissons, 292 So.2d 523 (La.1974), State Licensing Board for Contractors v. State Civil Service Commission, 240 La. 331, 123 So.2d 76 (1960).

ERRORS NOS. 2 & 3

In order for Ethyl to qualify for the tax credit as provided by LSA-R.S. 47:7, it is necessary that it meet the criteria established by the legislature for the granting of this tax credit. Therefore, in interpreting this statute it is necessary that we recognize that statutes imposing taxes are liberally construed in favor of the taxpayer, Chicago Bridge & Iron Co. v. Cocreham, 317 So.2d 605 (La.1975), whereas exemptions from taxation are to be strictly construed against the person claiming the exemption, and any plausible doubt is fatal, Mattingly v. Vial, 193 La. 1, 190 So. 313 (1939), and that an exemption being an exceptional privilege, it must be clearly, unequivocally and affirmatively established. Meyers v. Flournoy, 209 La. 812, 25 So.2d 601 (1946).

Ethyl argues that LSA-R.S. 47:7 does not grant an exemption but rather a tax credit, and the two are not the same. It is basically argued that an exemption is an immunity from a general burden, tax or charge, whereas a credit is a recognition and partial or whole discharge of an already determined tax liability.

Irrespective of whether it is termed an exemption, deduction or credit, the taxpayer is being relieved of a tax burden, and thus, we see no distinction. Kentucky Utilities Company v. Glenn, 394 F.2d 631 (6th Cir. 1968).

Abiding by and applying these rules of construction, we now proceed to errors numbers 2 and 3.

In order for Ethyl to qualify for the tax credit for the use or consumption of gas in Louisiana, it cannot resell the gas. LSA-R.S. 47:7 D(2)(d).

Ethyl argues that it does not sell, trade or barter the gas to GSU, however, we are convinced that the price of steam supplied to Ethyl by GSU is directly related to the furnishing of gas by Ethyl to GSU.

In Collector of Revenue v. Gulf States Utilities Co., 289 So.2d 367 (La.App. 1st Cir. 1974), writs refused, 293 So.2d 169, 170 (1974), this court used the analogy of a tailor, who in producing a product, uses the raw materials provided by the customer. Had the material not been supplied by the customer, the finished product would have had a higher price. Under the facts of this case, the transfer of gas by Ethyl is in essence a resale of gas, the consideration being the lowering of the price paid for the steam which is solely produced by Gulf States Utilities. Under these facts the Trial Court erred in failing to find that Ethyl “resold” the gas.

Though we have already found error under specification of error number 2 sufficient to cause a reversal of the Trial Court judgment, we shall proceed, nevertheless, with a discussion of error number 3.

Again applying the above rules of construction and interpretation of taxing statutes as well as those statutes that grant deductions, exemptions and credits, we must conclude that construing LSA-R.S. 47:7 strictly against the taxpayer, Ethyl does not use or consume natural gas in the operation of its manufacturing establishment as required by LSA-R.S. 47:7 A. Ethyl uses steam to manufacture its product, not natural gas. The natural gas that it claims it uses is used to produce the steam, but this natural gas is used by GSU, and not Ethyl. Therefore, we find that the Trial Judge was in error in liberally construing the tax credit statute in favor of the taxpayer.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is reversed and judgment is now rendered in favor of the Collector of Revenue for the State of Louisiana, and against the Ethyl Corporation, with all costs to be paid by the Ethyl Corporation.

REVERSED AND RENDERED.

      . LSA-R.S. 47:7.

      . LSA-R.S. 47:1061-72.

      . LSA-R.S. 47:7 D(2)(d) provides:
      “As used in this Section:
      * * * * * *
      “(2) ‘Gas used or consumed’ shall include all natural or casinghead gas used in the operation of the manufacturing establishment for whatever purposes, but shall not include the following:
      * * * * * *
      “(d) Gas, any part of which is resold by the manufacturing establishment, except as to that part and quantity of the gas which is actually used by the establishment and not resold.”


author: EDWARDS, Judge.

text:
    LEON NAQUIN & SON, INC. v. Alvin CLAUSE d/b/a The Foundry.
    No. 11547.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.

      Robert D. Morvant, Thibodaux, for plaintiff and appellee.
    Larry P. Boudreaux, Thibodaux, for defendant and appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Leon Naquin & Son, Inc. brought this suit against Alvin Clause, d/b/a The Foundry, to collect $4,876.11 representing unpaid electrical services performed in renovating defendant’s nightclub. The trial court rendered judgment in favor of plaintiff. Defendant has appealed.

Plaintiff is in the electrical contracting business with its principal place of business in Thibodaux, Louisiana. The defendant is the owner and operator of a nightclub in that city known as “The Foundry” which is housed in an old building renovated especially for that purpose. This suit arises out of the renovation of the building.

Sometime in the later part of 1974, plaintiff was approached by Mickey Kyzar, a then employee and agent of the defendant, regarding the electrical work required in the renovation. It was orally agreed between plaintiff and defendant’s agent, Ky-zar, that plaintiff would perform whatever electrical work was required on a time and materials basis. Plans for the job were prepared by plaintiff, but no charges were made for this service.

Shortly after the electrical work began, plaintiff furnished, in answer to defendant’s request, a “rough” estimate for the electrical service. This estimate was $14,-000.00 to $17,000.00 with a variance of a couple of thousand dollars either way. As the job progressed however, an additional $3,500.00 or $4,000.00 was added in changes and additions.

By stipulation of counsel, it was agreed that all invoices, work sheets and slips for work done by plaintiff would be introduced into the record. It was further stipulated “that all work, material and equipment shown on said documents was actually furnished and incorporated in the electrical work done on said building and all of said electrical work was done in a proper and satisfactory manner.” Additionally, it was agreed that plaintiff’s total charges for work and materials amounted to $20,904.96 of which sum defendant paid $15,973.69 plus a credit of $55.16 leaving a balance due of $4,876.11 — the amount sued upon.

Finally, counsel stipulated that there was only two issues involved in this suit, to-wit: (a) the reasonableness or fairness of the charges made by plaintiff for the material and equipment; and (b) whether or not a contract was entered into between the parties for the work, or whether the claim was one in quantum meruit.

The trial court held that the parties had entered into an oral time and materials contract, with Kyzar acting as defendant’s agent; and that plaintiff’s charges, including a 22% profit, were reasonable.

Defendant contends that the trial court’s holding is erroneous and that the amount of the award should be reduced by one-half.

The testimony in the record establishes conclusively that the parties entered into an oral time and materials contract for the electrical renovation of the Foundry building.

Insofar as the reasonableness of the plaintiff’s charges is concerned, there is substantial evidence in the record to support the trial court’s conclusion. Plaintiff’s vice-president, Clyde Naquin, Jr., testified regarding the method of mark-up on materials, using the National Pricing Service Catalog, in order to attain anticipated profits. Additionally, Naquin listed the various expenses which constituted plaintiff’s overhead. Finally, he stated that plaintiff anticipated making profits on a time and materials job in the area of 20% to 25%, and that the actual profit on the Foundry job was 22%.

Naquin’s testimony regarding the method of mark-up and anticipated profits was completely corroborated by the testimony of E. J. Plaisance, a competing electrical contractor. This contractor stated that he uses the same method of mark-up; and that he expects to make a profit of 25% on time and materials jobs.

The only contradiction, if indeed it is a contradiction, is contained in the testimony of defendant’s nephew, Lynn Clause, an electrical contractor from Jefferson Parish. Mr. Clause quoted McGraw-Hill to the effect that the average national profit for electrical contractors was 10%. He stated that a profit of 22% would be high, but at the same time revealed that his average profit, of approximately 15% was above the national average.

The trial judge stated in his written reasons that he discounted Clause’s testimony because of the differences of size and locale of Clause’s business when compared with plaintiff’s operation. Instead, the trial court chose to rely on the corroborated testimony of plaintiff’s witnesses. We do not view this as error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

For the reasons assigned, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


author: EDWARDS, Judge. PONDER, Judge,

text:
    Charles J. BERGERON, Jr. v. Katherine Boudoin BERGERON.
    No. 11548.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.

      Robert L. Morris, Houma, for plaintiff and appellee.
    Ralph D. Hillman, Thibodaux, for defendant and appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is an appeal by Katherine Boudoin Bergeron from a judgment in favor of Charles J. Bergeron, Jr., her ex-husband, changing the custody of two of their minor children and reducing the previous award of alimony and child support.

BACKGROUND:

Mr. and Mrs. Bergeron were divorced on November 20, 1972. The divorce judgment granted Mrs. Bergeron the custody of their five minor children, and awarded her the sum of $67.50 per week as alimony and $67.50 per week as child support.

Custody of one of the children was changed from Mrs. Bergeron to Mr. Berger-on by judgment of July 19, 1973. Mr. Ber-geron thereafter, on October 3,1973, filed a rule to reduce alimony and child support. On October 31, 1973, Mrs. Bergeron filed a rule to increase alimony and child support. After a joint hearing, judgment was rendered on November 21, 1973, reducing the combined alimony and child support to $100.00 per week; subsequently allocated on joint motion as $25.00 per week alimony and $75.00 per week child support.

PRESENT LITIGATION:

On November 16, 1976, Mrs. Bergeron filed a motion to increase child support and alimony, alleging that the living expenses of herself and the four children had greatly increased. Mr. Bergeron thereafter filed a rule to change custody of the two oldest children, both boys, ages 16 and 13; decrease child support; and terminate alimony. The two rules were heard on December 9,1976, after which judgment was rendered changing the custody of the two children from Mrs. Bergeron to Mr. Bergeron, and reducing alimony and child support to $75.00 per week.

Mrs. Bergeron has appealed contending that the trial court erred in reducing, rather than increasing, the alimony and child support. She does not contest the change of custody.

At the hearing, Mrs. Bergeron testified that current average monthly expenses for herself and the four children had increased since 1973 and currently amounted to $984.00. She did not testify concerning how much the 1973 expenses were or exactly how much her current expenses had increased beyond the 1973 amount. Mrs. Ber-geron stated that she does occasional substitute work for the parish school board. She stated that she earned $646.00 in 1975 and had earned only $66.00 in 1976 at the time of the hearing in December 1976. She also stated that Mrs. Bergeron’s mother, who resides with her and pays no rent, gives her approximately $600.00 per month, as a gratuity, to help meet monthly expenses.

In determining the amount to award for support and alimony, trial courts are allowed a great deal of discretion as these are primarily factual issues. The amount set by the trial court will not be changed on review unless the evidence shows a clear abuse of said discretion. Shanklin v. Shanklin, 339 So.2d 1262 (La.App. 1st Cir. 1976), and cases therein cited.

While the evidence in the record indicates that Mr. Bergeron might be able to pay more than $75.00 per week as alimony and child support, we do not view the trial court’s award in that amount as an abuse of discretion.

This case presents a classic illustration of the meaning of such concepts as manifest error and a trial court’s discretion.

Our review of the record suggests that the $75.00 per week amount for alimony for the wife and support of a twelve year old girl and a six year old boy is low.

But on the other hand, the prior amount was $100.00 per week for the wife, these same two youngsters, as well as two older boys (ages 16 and 13) whose custody is now changed to the father, and accordingly he is now solely responsible for their financial needs. In other words, the wife will now have to support financially only herself and two children, not four, on the $75.00 per week.

We view the record as suggesting, but not clearly showing, an increase in income to the husband since 1973, and also an increase in normal household expenses of the wife during that period. But it appears the trial judge may well have felt that these “increases” were “offset” by the fact that the wife would henceforth have only two children in her care.

Therefore, where is the manifest error? We can’t find it and under our jurisprudence it is our duty to affirm.

For the reasons assigned, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.

PONDER, Judge,

dissenting.

I believe Mrs. Bergeron has established both that her needs are greater and that Mr. Bergeron’s income is higher.

The testimony that her average current monthly expenses were $1,032.17 and that the family had had to depend on the largesse of her mother-in-law was not controverted. The average monthly expenses were $760.33 in 1973. Mr. Bergeron’s tax return for 1972 showed net income of $25,-905.00. The statements covering 10 months in 1976, presented by Mr. Bergeron’s accountant, while not balance sheets or profit and loss statements and therefore not of maximum benefit to the court, do indicate that the 1976 income was comparable to that of 1975.

Mrs. Bergeron’s voluntary relinquishment of two of the four children does not, in my mind, justify either a reduction or a refusal to increase.

I therefore dissent.


author: PONDER, Judge.

text:
    EQUIPMENT RENTAL SERVICES, INC. v. Ross CAMPESI d/b/a M. E. I. Enterprises.
    No. 11552.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 21, 1977.

      J. D. DeBlieux, Baton Rouge, for plaintiff-appellant.
    Curtis K. Stafford, Jr. of Pierson & Stafford, Baton Rouge, for defendant-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is an action to recover costs of repair, lost rental, attorney’s fees, and interest under the provisions of a rental agreement. The court allowed recovery of some of the repair costs and some lost rental only. Plaintiff seeks a reversal of the trial judge’s determination that there was no written contract. Defendant-lessee has answered this appeal seeking a complete reversal.

Defendant’s employee, Layfield, opened negotiation for the rental of a dozer. Cook, defendant’s superintendent, completed negotiations and told plaintiff to deliver the dozer after agreeing to the rental rate, the minimum lease period and the condition that the dozer be used only for dirt work. Cook authorized Layfield to receive delivery. Plaintiff, however, had a written rental agreement presented to Layfield, who signed it. This document contained provisions that the lessee would be responsible for repairs, lost rental time, attorney’s fees and interest at the rate of 1% per month. When the dozer was returned its hydraulic system was inoperative, its blade cracked and gouged, its front idler arm broken and its rear fuel tank in need of repair.

Plaintiff claims the cost of repairs, $2,615.42; one month’s rental, $3,400.00; attorney’s fees at 25% and interest at 8%. The court allowed $1,790.00 for repairs, $1,125.00 for 3 days rental at the $375.00 daily rental rate and interest at 7% from date of judicial demand.

The issues presented are: (1) Was there a written contract of lease. (2) Did damage beyond the normal wear and tear occur during the lessee’s possession.

We amend and affirm.

There is in the record the written agreement signed by Layfield. Defendant denies that he had authority to sign the agreement; defendant’s manager denies even discussing such authorization with either Layfield or plaintiff. There is some testimony by the employee that he was given authority to sign the “contract”. Admittedly, he was authorized to accept the machine, but there is some evidence to support the trial judge’s finding of no express grant of authority to sign the rental agreement.

Plaintiff urges alternatively that Lay-field had implied authority. In Pailet v. Guillory, La.App., 315 So.2d 893 (3rd Cir., 1975) the Court discussed implied agency as follows:

“ * * * Like an express agency, an implied agency is an actual agency.”

Thus, to prove an implied agency between Manufacturers Enterprises, Inc. and its employee, Mr. Layfield, plaintiff must show circumstances between the alleged principal and agent, beyond the normal employment relationship. The trial court evidently found that Layfield had no grant of authority beyond receiving and signing for the machine. It is difficult to interpret that grant as encompassing the implied authority to sign a rental agreement containing provisions unknown to both Layfield and Cook. We reject that contention.

The plaintiff next contends that Layfield had apparent authority. The issue presented here is not one of apparent authority, but one of credibility. The testimony dealing with this issue is completely contradictory. The plaintiff claims the defendant told him to get Layfield to sign the written contract. The defendant testifies of a policy against signing such contracts; Cook states emphatically that he did not say or do anything that could lead plaintiff to believe that Mr. Layfield could sign anything other than the normal receipt. The trial court accepted defendant’s version. Since there are facts to support this finding, we should not overrule it without finding manifest error. Canter v. Koehring Company, 283 So.2d 716, La. (1973).

The finding of no written contract, however, does not end the matter; there was an understanding of a one-month minimum rental period at a stated rate and of a condition that the machine would not be used for anything other than dirt work; thus there was an oral lease.

LSA-C.C. Article 2711 imposes a duty not to misuse the thing leased. Thus, the only thing the plaintiff must show is “misconduct” on the part of the defendant-lessee.

The plaintiff relies on circumstantial evidence and expert testimony: the machine was in good condition when delivered to the jobsite, something other than dirt was actually moved with the dozer, the dozer blade was meant for dirt moving only, there was insufficient preventative maintenance to the hydraulic system, and this failure to maintain was a probable cause of such failure. One of defendant’s witnesses admitted that the crack would not have resulted from normal wear and tear of the machine. Despite some contradictions, especially between opposing experts, the evidence is sufficient to support the trial judge’s findings.

The court allowed the cost of disassembling, straightening and reassembling the dozer, but disallowed the cost of repairs to the hydraulic system and track idler. There is evidence to support the conclusion that the items allowed resulted from misuse and those disallowed resulted from normal wear and tear. We therefore will not overturn that conclusion.

The court allowed the rental rate for a week of lost time. There was evidence that three days’ time would be required to repair the machine. The rate for a week would be $1,135.00; the rate for three days would be $1,125.00. Defendant does not complain of the small added amount.

We note, however, that the court did not allow the cost of the plate repaired on the machine or the sales tax required. We will amend to allow these.

For the reasons assigned we amend the judgment to add repair costs of the plate in the amount of $25.01, and sales tax in the amount of $108.90 on the repairs to the dozer. Plaintiff is cast for all costs of these proceedings.

As amended the judgment is affirmed.

AMENDED AND AFFIRMED.

      . The lower court spoke in terms of quantum meruit and no lease at all. We disagree with that conclusion.

      . “Art. 2711. If the lessee makes another use of the thing than that for which it was intended, and if any loss is thereby sustained by the lessor, the latter may obtain the dissolution of the lease.
      The lessee, in that case, shall be bound to pay the rent, until the thing is again leased out; and the lessee is also liable for all losses which the owner may have sustained through his misconduct.”