author: CULPEPPER, Judge.

text:
    Dorothy STEVENSON and Joel Stevenson, Plaintiffs and Appellees, v. BOARD OF LEVEE COMMISSIONERS OF the TENSAS BASIN LEVEE DISTRICT, Defendant and Appellant.
    No. 6215.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Rehearing Denied Jan. 12, 1978.
    Writ Refused Feb. 24, 1978.
    Coenen & Berry by Theo J. Coenen, III and James W. Berry, Rayville, for defendant-appellant.
    Reeves, Lossin & Owens by R. R. Reeves, Jr., and H. James Lossin, Sr., Harrisonburg, for plaintiffs-appellees.

      Dewey E. Burchett, Jr., Bossier City, ami-cus curiae.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

Joel and Dorothy Stevenson, husband and wife, sue for the market value of their separate tracts of land, plus special damages. They contend the defendant levee board wrongfully appropriated the tracts for levee purposes. The levee board contends that since the lands are riparian they are subject to a servitude, under LSA-C.C. Article 665, for the levee in question, and that plaintiffs are entitled to only the assessed value of the lands. The trial court found that although the lands are riparian, they are not subject to appropriation for this “backwater” levee. The court granted defendant’s alternative demand for expropriation and awarded plaintiffs $2,070 per acre plus special damages. Defendant appealed. Plaintiffs answered the appeal, seeking an increase in the award to $2,500 per acre.

The substantial issues on appeal are: (1) Does LSA-C.C. Article 665 require that the appropriation of riparian land for levee purposes be necessary for the control of water from the stream to which the property is riparian, or can the levee be for flood control in general? (2) Is the award of $2,070 per acre excessive or inadequate?

There is little dispute as to the facts. Each plaintiff owned a separate tract of land located south of Jonesville in Catahou-la Parish. The tracts are adjacent. While neither tract now has frontage on a stream, they are riparian under LSA-C.C. Article 665, because they were parts of larger tracts which bordered the Black River and Little River respectively when the parent tracts were severed from the public domain in the 1800s. The 3.44 acres owned by Dorothy Stevenson is part of Section 3, Township 7 North, Range 6 East, which is riparian to Little River. The 6.88 acres owned by Joel Stevenson is part of Section 38, which is riparian to Black River.

In the area in question the rivers are roughly parallel but several miles apart. Little River runs from south to north and then turns to the east and runs into Black River, which runs from north to south. Jonesville is at the junction of the two rivers. Both rivers are navigable today and were navigable when the tracts in question were severed from the public domain.

The levee in question was first built to protect portions of the town of Jonesville during the severe flooding in 1973. It is part of a system of ring levees located south of Jonesville and running generally east and west between the two rivers. It is perpendicular to the rivers, rather than parallel to them. Before 1973, other levees already existed on the parent tracts along the banks of both the Black River and Little River.

The plaintiffs gave their consent to the construction of the 1973 emergency levee, provided it would be only temporary and provided the property would be left in the same condition as it was before the levee work was done. When the flood water receded in 1973, the levee was flattened. The plaintiffs called on members of the levee board, asking that further repair work be completed. Before the work was done to plaintiffs’ satisfaction, the 1974 flooding had begun. In January of 1974, the defendant board passed a resolution appropriating the same parts of plaintiffs’ lands used for levee purposes in 1973. This suit is a result of that appropriation.

The trial court found that while the land is riparian to navigable streams, the Article 665 servitude is not applicable because the levee in question was not built to hold either of these two streams within its banks. The court found the purpose was to keep backwater from these streams, as well as from numerous other rivers and bayous, from backing up through the lowlands south of Jonesville and inundating the Jonesville area.

Since all parties agree that the levee was necessary, the court granted the defendant’s demand for expropriation. Plaintiffs were awarded $2,070 per acre as the fair market value of the 10.32 acres expropriated, as well as special damages of approximately $7,500 for loss of crops, destruction of a fence and culvert, and severance damages to three acres.

LSA-C.C. Article 665 provides a servitude in favor of the public upon lands adjacent to navigable rivers and streams for the construction and maintenance of levees.

When a levee district appropriates property for levee and levee drainage purposes, pursuant to Article 665, there is no requirement that the landowner be justly compensated. Louisiana Constitution of 1974, Article 1, Section 4. The maximum amount a landowner can receive for property appropriated is the assessed value of the property for the preceding year. Constitution Ancillaries, Article 16, Section 6.

Article 665 has had several interpretations in our jurisprudence. At one time the power to appropriate was broad indeed. It encompassed not only property which was riparian but any property “which is within the range of the reasonable necessities of the situation, as produced by the forces of nature unaided by artificial causes”. Board of Commissioners of Tensas Basin Levee District v. Franklin et al., 219 La. 859, 54 So.2d 125 (1951) and the cases cited therein.

After these cases the scope of Article 665 was narrowed by the jurisprudence. In De-laune v. Board of Commissioners for the Pontchartrain Levee District, 230 La. 117, 87 So.2d 749 (1956), our Supreme Court stated two tests: (1) The property must have been riparian property when it was separated from the public domain. (2) The property must be “within the range of the reasonable necessities of the situation, as produced by the forces of nature, unaided by artificial causes”.

In A. K. Roy, Inc. v. Board of Commissioners for the Pontchartrain Levee District, 237 La. 541, 111 So.2d 765 (1959), the land at issue was part of a large tract which was riparian to the Mississippi River. However, the property taken by the Board was to erect a levee along the shores of Lake Pontchartrain for protection against flooding from the lake. The court held:

“It would appear from the pleadings and argument and briefs of counsel in this court that the principal question urged in the lower court, other than the one just disposed of, was the effect of our recent decision in the case of Delaune v. Board of Commissioners, 230 La. 117, 87 So.2d 749, on the facts of the case at bar. “[3] Defendant has failed to meet the test enunciated in that case. Although it is conceded by plaintiff that the property was part of a large tract, which, at the time of its severance from the public domain, bordered the Mississippi River, there was no showing that the purpose for which the property was taken had any relation whatsoever to control of the flood waters of the Mississippi River ‘within the range of the reasonable necessities of the situation as produced by the forces of nature unaided by artificial causes.’ (Emphasis supplied)

We interpret the Roy case as requiring that the levee must be necessary for the control of flood waters from the river to which the land taken is riparian. This interpretation was also given to the Roy case in Grayson v. Commissioners of Bossier Levee District, 229 So.2d 139 (La.App., 2d Cir. 1969) in an opinion authored by Judge, now Justice, Dixon, although it appears this statement in Grayson is dicta because the land in that case was not riparian. Also, in the recent case of Taylor v. Board of Levee Commissioners of the Tensas Basin Levee District, 332 So.2d 495 (La.App., 3rd Cir. 1976) a different panel of our court gave this same interpretation to the Roy case, although, again, this was dicta in Taylor because there the land was not riparian. In United Gas Pipe Line Company v. La-fourche Parish Police Jury, 338 F.Supp. 1296 (E.D.La.1972), the Federal Court gave this interpretation to the Roy case and applied it.

The defendant argues that the Roy case should not be interpreted as requiring that the levee be to control flood waters from the river to which the land is riparian. Defendant argues this statement was added in the Roy case through inadvertence and without discussion. The Board contends our Supreme Court would not have intentionally made such an important “change” in our law without discussion. We are not impressed by this argument. It seems equally logical to us that our Supreme Court could have considered the rule stated in Roy to be so fundamental as not to require extended discussion. In any event, we conclude the holding in the Roy case is clear and that it is controlling in the present litigation.

The trial judge correctly applied the test enunciated in the Roy case. In written reasons he stated:

“However, there is no question, and this Court finds for a fact that the levee constructed upon the property was not built to hold either of these streams in their banks. It is true that some part of the back waters which this levee held off of the Town of Jonesville could and probably did come from each of these rivers; but is equally true that some of the back waters came from Red River, Saline Bayou and other streams which constitute the normal drainage system for this area. Therefore, I do not believe that it can be said that this land was taken for the purpose of controlling waters from the stream to which the tract from which it came was riparian.”

The evidence fully supports this factual finding by the trial judge.

The only issue remaining for our review is whether the trial court committed manifest error in awarding plaintiffs $2,070 per acre for the land expropriated. Both plaintiffs and defendant had qualified experts give their appraisals of the property. Value per acre ranged from a high of $2500 to a low of $425.

The trial court fixed the value at $2,070 per acre because this was the price paid for the remaining portions of these two tracts when the plaintiffs sold them in April of 1974. We find no error or abuse of discretion as to this award.

For reasons assigned, we affirm the judgment appealed. Costs of this appeal are assessed against the defendant-appellant, The Board of Levee Commissioners of the Tensas Basin Levee District, insofar as costs may be assessed against a state agency-

AFFIRMED.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    Clyde J. MIRE et al., Plaintiffs-Appellees, v. CHEVRON OIL COMPANY et al., Defendants-Appellants.
    No. 6217.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Rehearing Denied Jan. 12, 1978.
    Writ Refused Feb. 24, 1978.

      William H. Mouton, Lafayette, Aaron, Aaron & Chambers by Noble M. Chambers, Jr., Crowley, for defendants-appellants.
    Edwards, Stefasnki & Barousse by Homer Ed Barousse, Jr., Crowley, Pugh, Buatt, Landry & Pugh by Lawrence G. Pugh, Jr., Crowley, for plaintiffs-appellees.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

This is an action for cancellation of an oil, gas and mineral lease, for recovery of royalties, and for damages. Suit was filed by Clyde J. Mire, Melvin Mire, Nellie Jane Mire Holloway, Bonnie Mire Miller, and Gloria Boudreaux Hanks against Chevron Oil Company, Exxon Corporation, Curtis Mire, Melteris Mire, Percy Mire, and Erick M. Mire.

After answering the petition, Chevron and Exxon filed a motion for summary judgment which was overruled by the trial judge. Trial was held before a civil jury which rendered the following verdict:

“We, the Jury, find: in favor of Clyde J. Mire, et al, and further:
(1) Confusion did not take place in 1965: 12-0 vote
(2) In 1967, each owned 100% of mineral rights under whatever land he owned — vote: 12-0
(3) Cancel lease due to bad faith on Chevron — vote: 12-0
(4) Damages in amount of $100,000 to plaintiff — vote: 11-0, with one abstention.”

Judgment in accordance with the jury verdict was rendered and signed, and defendants have perfected this appeal. We reverse.

The record reveals that Erise Mire, father and grandfather of the individual plaintiffs and defendants herein, executed a donation inter vivos on December 14, 1957, to Cleveland Mire, Curtis Mire, Melteris Mire, Percy Mire, Curley Mire, Mable Mire, Clyde Mire and Erick Mire donating to them the following:

“. . . the following mineral interests in the proportions of an undivided one-eighth (Vs) interest therein to each, to-wit: (a) Eight-ninths (%) of the oil, gas, and other minerals, in, on, under and that may be produced from the following described land, to-wit:
A certain tract of land, situated in Section Five, Township Nine South, Range Three East, (Sec. 5, T. 9 S., R. 3 E.), Louisiana Meridian, Acadia Parish, Louisiana, containing One Hundred Twenty-six (126) acres, more or less, bounded, now or formerly, North by Sully Babineaux and Joseph Lantier, South by the tract next hereinbelow described, East by Joseph Lantier and Francois Thibodeaux and West by Veon Mire, Dupre Mire and Isidore Prejean.
(b) One-half (V¿) of the oil, gas and other minerals, in, on, under and that may be produced from the following described land, to-wit:
A certain tract of land, situated in Section Five, Township Nine South, Range Three East (Sec. 5, T. 9 S., R. 3 E.), Louisiana Meridian, Acadia Parish, Louisiana, containing Sixty (60) acres, more or less, bounded, now or formerly, North by the tract of land next herein-above described, South by Francois Thibodeaux and Onezia Mire Credeur, East by Francois Thibodeaux and West by Veon Mire, Dupre Mire and Isidore Prejean.”

Subsequently, on June 4,1965, Erise Mire executed another donation inter vivos by which he donated unto the above named eight children the surface rights to 153.644 acres, the same property which was involved in the mineral right donation herein-above mentioned. In the June 4 donation, however Erise Mire reserved and excepted from the donation, all of the oil, gas, and other minerals and mineral royalties, in, under, and pertaining to the donated property, specifically stating that this was a full and complete mineral reservation as distinguished from a simple royalty reservation. Of course, he could not reserve in 1965 more than the mineral interest he had reserved in the 1957 donation; viz, Vs on one tract and Vs on the other.

On the same day, that is June 4, 1965, before the same notary, the eight children of Erise Mire partitioned the property donated to them by their father. The donated tract was divided into eight lots numbered respectively lots one through eight as shown by a plat of survey dated May 27, 1965. Melteris Mire received Lot 1; Percy Mire, Lot 2; Curtis Mire, Lot 3; Curley Mire, Lot 4; Cleveland Mire, Lot 5; Erick Mire, Lot 6; Mable Mire, Lot 7; and Clyde Mire, Lot 8. In that partition agreement amongst the eight children was the following provision concerning the minerals underlying the property partitioned:

“This exchange and partition is made subject to and in accordance with the following reservations, stipulations and conditions, to-wit:
The parties hereto do not divide or partition the oil, gas, or other minerals and mineral royalties in, under, and relating to said tract of land but on the contrary leave same in indivisión with each party hereto retaining his or her virile and prorata [sic] interest therein without change.”

On May 31,1968, the eight children, along with their father Erise Mire, executed a mineral lease, unto one Jesse E. Tyra, on the property involved herein. That lease was subsequently assigned to Chevron, which subsequently assigned part of its interest to Exxon. Oil and gas were discovered in the area, and on January 18, 1970, by order of the Louisiana Commissioner of Conservation, a compulsory drilling unit was created known as the Guilbeau-Kaim Unit. A pre-existing well, which was off of the 160-acre tract, and which produced minerals in paying quantities, was the unit well. However, only part of the original 160-aere tract of land owned by the litigants herein was included in the unit. Some of the children had more acreage in the unit than others, and this is the fact which has caused this dispute.

In their petition, plaintiffs allege that they are entitled to a greater share of the production from the unit than their brothers and uncles named as defendants, and prayed for lease cancellation and damages due to Chevron’s and Exxon’s failure to pay them their proper share of the royalties. Chevron and Exxon had paid to each of the owners of the eight tracts of land an equal amount of mineral royalties from the production of the unit. Plaintiffs claim that the mineral servitude created in their favor by the act of donation of 1957, prescribed for ten years non-user in 1967; and since production did not commence until after 1967, that each owner of the eight lots of land is the sole owner of the surface and mineral rights of their respective properties; and that the owners of the other lots are not entitled to participate in the oil revenues produced from the plaintiffs’ properties.

Defendants contend that the mineral servitude created by the 1957 donation was extinguished by confusion by the 1965 act of donation; that the language in the partition agreement whereby the eight parti-tioners declared that they did not wish to divide the oil, gas and other minerals, but on the contrary, to leave the same in indivi-sión “with each party hereto retaining his or her virile and prorata [sic] share therein without change” created a new mineral servitude; that a new ten-year prescriptive period began to run as of June 4,1965; and that since the production involved herein is well within that ten-year period, that each of the owners of the individual eight tracts of land is entitled to participate equally in the minerals produced from under any of the tracts, or any minerals produced from a production unit wherein any portion of any one or more of the eight tracts is included in the said unit.

ISSUE OF EXTINGUISHMENT OF SERVITUDE BY CONFUSION

Article 788 of the Louisiana Civil Code enumerates the methods by which a servitude may be extinguished. We quote the pertinent parts thereof:

“Art. 783. Servitudes are extinguished:
(3) By confusion.

Articles 805 and 2217 of the Louisiana Civil Code, referring to extinguishment by confusion, read as follows:

Art. 805. Every servitude is extinguished, when the estate to which it is due, and the estate owing it, are united in the same hands.
But it is necessary that the whole of the two estates should belong to the same owner; for if the owner of one estate only acquires the other [in] part or in common with another person, confusion does not take effect.
Art. 2217. When the qualities of debt- or and creditor are united in the same person, there arises a confusion of right, which extinguishes the obligation.

Defendants contend that by the act of donation of the surface rights of the 160-acre tract to the Mire children, the mineral servitude donated to them by their father, Erise Mire, in 1957, was extinguished by confusion within the meaning of LSA-C.C. Art. 805 for the reason that the servitude and the land owing it were “united in the same hands”.

On the other hand, plaintiffs contend that confusion did not occur because of the second paragraph of Article 805 in that the “whole of the two estates” did not “belong to the same owner”.

In Clark v. Tensas Delta Land Company, 172 La. 913, 136 So. 1 (1931), our Supreme Court laid down the rule that an acquisition of mineral rights creates a servitude affording to the grantee the right to go upon the land of the grantor and explore for oil, gas, and other minerals, and to reduce them to possession. The Court observed that under the provisions of LSA-C.C. Art. 655, one of the characteristics of a servitude is that it does not oblige the owner of the estate that is subject to the servitude to do anything, but obliges him merely to permit to be done on his estate what is necessary for the owner of the servitude to have the benefit of it. The Court further noted that according to Article 656 of the Louisiana Civil Code, it is not possible for a person to have only a part of a servitude on another’s land, although, according to Article 657, the benefits or advantages resulting from a servitude may be divided. No question then but that either the reservation or conveyance of mineral rights created a servitude upon the land involved. In Clark v. Tensas, supra, the Court clearly held that ten-year prescription for non-user was applicable under LSA-C.C. Art. 789 and 3544.

In Starr Davis Oil Co. v. Webber, 218 La. 231, 48 So.2d 906 (1950), the Louisiana Supreme Court was called upon to announce the legal effect of a mineral reservation in favor of a vendor. At Page 907, the Court stated:

. . The sale or reservation of a part or all of the minerals is merely a grant of a right to go on the land for the exploration or exploitation of such minerals. This right has been defined on numerous occasions to be a real right in the nature of a servitude and the laws pertaining to servitudes control insofar as they are susceptible of application.” Citations omitted.

In the case of GMB Gas Corp. v. Cox, 340 So.2d 638 (La.App. 2 Cir. 1976), the court had occasion to consider an agreement, between the parties to an act of partition, similar to the agreement with reference to mineral rights contained in the act of partition of 1965 which is at issue in this case. The language in the partition agreement in Cox was as follows:

“It is understood and agreed, however, that no partition is made of the mineral interest and the parties shall continue to remain as owners in indivisión with respect to the oil, gas and other minerals in, on and under the property herein partitioned.”

The Second Circuit ruled that a single mineral servitude was created upon the entire 400-acre tract partitioned, and in so holding, stated:

“The language of the partition agreement adopted by Cox and Sanders leaves no doubt that they intended to own the minerals under the entire 400 acre tract in indivisión and to create a single mineral servitude for this purpose.”

From the language of Clark v. Tensas, supra, and Cox, it is clear then that by the act of donation of minerals in 1957, a single mineral servitude of an eight-ninths (%ths) interest in the mineral rights underlying the tract involved was bestowed upon the Mire children. Erise Mire himself owned no part of that servitude. He had conveyed an eight-ninths (%ths) mineral interest servitude to his children, in indivisión. The children owned 100% of the eight-ninths (% ths) mineral servitude in the property involved. A single mineral servitude existed in their favor. Erise Mire owned no part of any mineral servitude on his own property, and he never did so own a mineral servitude on his own property. Because, by the act of donation of June 4, 1965, Erise Mire divested himself of the land on which he had granted a mineral servitude to his children, then, and only then, did he acquire a mineral servitude by reservation of a one-ninth (V9th) mineral interest in the property of which he had divested himself by the act of donation.

We are of the opinion, and so hold, that as a result of the act of donation of 1965, the single servitude of 100% of eight-ninths (%ths) of the minerals which the children owned became extinguished by confusion when they acquired the surface rights. At that time, Erise Mire created unto himself a mineral servitude of one-ninth (V9th), something which he did not own before inasmuch as he could not own the surface rights and own a mineral servitude in his own favor at the same time. Therefore, in our opinion, the mineral reservation in favor of Erise Mire, and extin-guishment of the mineral servitude in favor of his children when they acquired surface rights, occurred simultaneously, and hence the second paragraph of Article 805 did not prevent their mineral servitude from being extinguished by confusion, as a matter of law. LSA-C.C. Arts. 619, 783, 805, 2217; Sample v. Whitaker, 171 La. 949, 132 So. 511 (1930); Dufilho v. Borden, 152 La. 88, 92 So. 744 (1922). The stipulation as to the mineral rights in the act of partition of June 4, 1965, indicates to us that children of Erise Mire wished to re-establish the same rights which they had acquired from their father in the 1957 donation. Accordingly, a single servitude on the entire tract, which servitude was shared by each of the par-titioners in an equal undivided one-ninth (V9th) interest each, was created by the act of partition, and as of that date, a new ten-year prescriptive period for non-user commenced to run.

In accordance with the foregoing, we find, and accordingly hold, that on June 4, 1965, a new mineral servitude was created, effective as of that date, by the eight children of Erise Mire. The children were therefore entitled to share equally in production from minerals produced from the tract or tracts of either of them, or from production attributable to all or parts of the property partitioned which may be included in a production unit, even though the unit well (as in this case) may be off of the partitioned property. We therefore conclude that the payment of Chevron and/or Exxon of royalty benefits to the children on an equal basis was proper and in accordance with law. Accordingly, the trial court erred in decreeing otherwise; and awarding damages to the plaintiffs, cancelling the lease involved, and holding that prescription had run in 1967.

We therefore reverse the judgment of the trial court in toto and dismiss plaintiffs’ suit with prejudice.

All costs of these proceedings, both in the trial court and in this Court, are assessed against plaintiffs-appellees.

REVERSED AND RENDERED.

      . Two of the plaintiffs represent a pre-deceased parent. Nellie Jane Mire Holloway is the surviving daughter of Cleveland Mire; Gloria Bou-dreaux Hanks is the surviving daughter of Mable Mire Hanks.


author: GUIDRY, Judge.

text:
    James Patrick ROBINSON and John Brent Menier, Plaintiffs, v. LOUISIANA DEPARTMENT OF HIGHWAYS et al., Defendants-Third-Party Plaintiffs-Third-Party Defendants-Appellants.
    No. 6219.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.

      Taylor & Trosclair by Earl B. Taylor, Opelousas, for plaintiff-appellant.
    Lewis & Lewis by James T. Guglielmo, Opelousas, for defendant-appellant.
    William J. Doran, Jr., Baton Rouge, McBride & Brewster by Norman P. Foret, Lafayette, for defendant-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

The above numbered and entitled matter was consolidated for trial in the district court with Ferguson v. Dixie Auto Insurance Co. et al., 353 So.2d 468 (La.App. 3rd Cir. 1977) and Bergeron, Ind., et al. v. Louisiana Department of Highways et al., 353 So.2d 469 (La.App. 3rd Cir. 1977). These cases remain consolidated on appeal and we decide all of these cases today. The facts and law are common to all three cases.

These consolidated cases arise out of an intersectional collision between a Ford and a Volkswagen which claimed the lives of the three occupants of the Volkswagen and caused physical injury to Marc Bergeron, a guest passenger in the Ford automobile. Dixie Auto Insurance Co. and Early American Insurance Co., the insurers of the negligent driver of the Ford settled the three wrongful death claims which were filed in these suits and now, as assignees of these claims, seek contribution from the State of Louisiana, through the Department of Highways.

The sole issue presented in this appeal is whether the Department of Highways was guilty of negligence in allowing grass and weeds to obscure the intersection.

The trial judge found no negligence on the part of the Department of Highways concluding that, although there was a minimal obscurement of vision as to the lower part of vehicles traveling on the favored highway as a driver approached the intersection on the unfavored road, when the driver on the unfavored street reached the stop sign he was afforded almost unlimited vision down the main highway. Accordingly, the trial court concluded that the sole proximate cause of the accident was the negligence of Judy Bergeron, driver of the Ford automobile, in failing to obey a stop sign and overhanging flasher signal and recklessly driving her vehicle directly in the path of oncoming traffic. We affirm these conclusions of the trial court finding a reasonable factual basis in the record to support same. Canter v. Koehring, 283 So.2d 716 (La.1973). The judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


text:
    Thelma FERGUSON, Plaintiff, v. DIXIE AUTO INSURANCE CO. et al., Defendants-Third-Party Plaintiffs-Third-Party Defendants-Appellants.
    No. 6220.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.

      Taylor & Trosclair by Earl B. Taylor, Opelousas, for plaintiff-appellant.
    Lewis & Lewis by James T. Guglielmo, Opelousas, for defendant-appellant.
    William J. Doran, Jr., Baton Rouge, McBride & Brewster by Norman P. Foret, Lafayette, for defendant-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

The above numbered and entitled matter was consolidated for trial in the district court and on appeal with Robinson and Menier v. Louisiana Department of Highways et al., 353 So.2d 467 (La.App.3rd Cir. 1977), our docket number 6219 and Bergeron et al. v. Louisiana Department of Highways et al., 353 So.2d 469 (La.App. 3rd Cir. 1977).

The sole issue in this appeal concerns the liability of the Louisiana Department of Highways. For the reasons assigned in the companion case which bears our docket number 6219 we affirm the trial court’s determination that the Louisiana Department of Highways was free from negligence. Appellants are cast for all costs on appeal.

AFFIRMED.


author: GUIDRY, Judge..

text:
    Morris BERGERON, Ind., et al., Plaintiffs-Appellants-Appellees, v. LOUISIANA DEPARTMENT OF HIGHWAYS et al., Defendants-Appellees-Appellants.
    No. 6221.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Taylor & Trosclair by Earl B. Taylor, Opelousas, for plaintiff-appellant.
    Lewis & Lewis by James T. Guglielmo, Opelousas, for defendant-appellant.
    William J. Doran, Jr., Baton Rouge, McBride & Brewster by Norman P. Foret, Lafayette, for defendant-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   GUIDRY, Judge..

The above numbered and entitled matter was consolidated for trial in the district court and on appeal with Robinson and Menier v. Louisiana Department of Highways et ah, 353 So.2d 467 (La.App.3rd Cir. 1977), our docket number 6219, and Ferguson v. Dixie Auto Insurance Co. et al., 353 So.2d 468 (La.App.3rd Cir. 1977).

The issues in this appeal concern the (1) liability of the Louisiana Department of Highways and (2) quantum of the general damage award made by the jury for the physical injuries suffered by Marc Berger-on.

For the reasons assigned in the companion case which bears our docket number 6219 we affirm the trial court’s determination that the Louisiana Department of Highways was free from negligence.

The remaining issue concerns the adequacy of the jury’s award of damages to Marc Bergeron, who was a guest passenger in the automobile driven by his mother, Judy Bergeron.

Morris Bergeron, individually and as administrator of the estate of Marc Bergeron has appealed, asking that the jury’s award of $2,500.00 to Marc Bergeron be increased.

At trial, three physicians who had treated Marc testified concerning his injuries. Their testimony may be summarized as follows:

As a result of the automobile accident, Marc, who was then 8 years old, suffered a fracture of the mid shaft of the left femur (thighbone) at approximately the mid thigh, severe lacerations of the lower jaw and mandibular mucosa (covering on the inside of the mouth) exposing the mandibular (jawbone) on the interior surface of the mouth, loosening of several teeth, severe lacerations of the right knee and multiple contusions and abrasions.

Marc was admitted to surgery where a pin was placed across the fractured leg in the tibia for the purpose of instituting traction. The pin was drilled across the bone just below the knee. Also, the laceration on his right knee was treated.

Marc had a cut through and through the mouth (a transverse cut), extending approximately 3V2 inches, which exposed the four lower teeth completely. The four lower teeth could be moved approximately 50° posterior and anterior, but they were stable enough at the time so as to make it unnecessary to suture them to the gums. The cut had to be sewn from both the inside and outside of the mouth. A drain had to be put in place in case of any blood formation after suturing.

After surgery, Marc was taken to his room and placed in traction. During the period of time that he was in traction (approximately 3% weeks), Marc was essentially confined to the bed.

A tube was placed in Marc’s nose to take the air out of his stomach to prevent swelling. It was later observed that Marc had a distended bladder. A tube known as a folding catheter was placed in his bladder by inserting it through the penis. This is a procedure which is especially more painful for a child than an adult. The catheter was left in his bladder approximately 3V2 days.

After the traction apparatus was removed, Marc was given a mild sedative and brought to the operating room where the pin was removed under sterile conditions with a small drill. At this point, Marc was placed into a spica cast which encloses the patient from the waist down the extremity that is injured and down to mid thigh on the opposite normal extremity.

In spite of these serious injuries, it appears that Marc will suffer no permanent disability. At the time of discharge from the hospital, the laceration on Marc’s knee had healed along with the lacerations on his mouth. Two days prior to discharge, Marc had a minimal line at the suture site.

After about 6V2 weeks, the spica cast was removed. X-rays were taken and it appeared that the bone was healing well. At this point, Marc was started on some exercises of the hip, knee and ankle. It was recommended that he get into a swimming pool to begin loosening the leg. Marc was allowed to begin walking on crutches.

Approximately 4V2 months after the fracture, x-rays were again taken, revealing that the bone was completely healed. Measurements were taken of Marc’s leg lengths. They were found to be equal. Marc had no tenderness in the thigh and good motion in his leg. No significant weakness or atrophy were found in Marc’s legs. It was recommended that Marc gradually return to normal activity.

Marc retained a slight limp, but this was thought to be more of a habit which would correct itself in time, than a physical thing. It is felt that Marc’s occasional discomfort after strenuous exercise will pass in time. The scar left by the laceration on Marc’s right leg may possibly enlarge somewhat as he grows older.

Although he was given medication to help alleviate his pain, it cannot be disputed that Marc suffered intense pain and discomfort for which he is entitled to adequate compensation.

We find a manifest abuse of the trial court’s discretion in that the jury’s award of $2,500.00 is clearly inadequate to compensate for Mare’s general damages. In reversing the jury’s award of damages, we must look for guidance to Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1975) and Schexnayder v. Carpenter, 346 So.2d 196 (La.1977). In accordance with Coco, supra, and Schexnayder, supra, we should award the lowest amount which the jury reasonably could have awarded. We find that the lowest amount which could reasonably be awarded based on the evidence in the record is $8,000.00. We will increase the award to that amount.

For the above reasons, the award in favor of Marc Bergeron is amended and increased to $8,000.00. In all other respects, the judgment is affirmed at appellants’ cost.

AMENDED AND AFFIRMED.


author: WATSON, Judge.

text:
    John D. FOREMAN, Plaintiff-Appellant, v. VERMILION PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 6223.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Rehearing Denied Jan. 12, 1978.
    Writ Refused Feb. 24, 1978.

      Cooper & Sonnier, by Charles R. Sonnier, Abbeville, for plaintiff-appellant.
    Broussard, Broussard & Moresi, by Paul G. Moresi, Jr., Abbeville, for defendant-ap-pellee.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

Plaintiff, John D. Foreman, has appealed from a trial court judgment upholding his discharge as a teacher by the defendant Vermilion Parish School Board. The trial court found that Foreman was effectively dismissed as of October 3, 1975, and awarded him wages of $1,956.75 for the period between the school board’s first attempt to fire him and that date. Plaintiff Foreman contends that his discharge violated the Louisiana Teacher Tenure Law, LSA-R.S. 17:441-17:445; that the board action was arbitrary and capricious; that he was denied due process of law and equal protection, as guaranteed by the 14th Amendment to the United States Constitution and the Louisiana Constitution of 1974; that the school board did not rely on valid reasons for his discharge; and that dismissal for the reasons cited violated his right to freedom of speech, as guaranteed by the First Amendment to the United States Constitution.

Although Foreman has 16 years of teaching experience, he was a probationary teacher in Vermilion Parish because he had only taught in that system for two years. He transferred from Lafayette Parish to the Indian Bayou High School in Vermilion Parish for the 1973-74 term and continued there in 1974-75. His employment commenced effective August 17, 1973. Foreman received his last paycheck in August of 1975. He was paid on a 12-month basis. Foreman received three letters advising him his employment would not be continued. The first, on May 23,1975, was signed by Superintendent Ray Broussard, but there had been no written recommendation by Broussard to the school board as required by LSA-R.S. 17:442. The second letter, mailed June 20, 1975, was also written without a recommendation by superintendent Broussard to the school board. The third letter, dated October 3, 1975, was sent after this suit was filed but the school board had then acted on a written recommendation from the superintendent based on what the trial court found to be valid reasons:

“. . . Foreman’s failure to cease in-terferring [sic] with the basketball program, his public displays of unsportsmanlike conduct, and his poor evaluation sheets clearly show that the [sic] was dismissed for ‘valid’ reasons.” (TR. 104)

The reasons given were as follows:

“. . Mr. Foreman was not recommended for reemployment due to unsatisfactory evaluation in the areas of cooperation, adaptibility, attitude toward supervision, and loyalty. Also, below average evaluation in the areas of leadership qualities, attitude toward recommendations, relationships with fellow teachers, and participation in professional organizations and activities. Also for reasons explained in a letter dated April 30, 1975 from his principal . . . ” (TR. 98).

The principal’s letter relates Foreman’s verbal criticism of the basketball program and basketball coach Benny Dronet, an incident in February of 1975 when Foreman was asked by the referees to leave a basketball game, and a subsequent unsatisfactory meeting between Broussard, Dronet and Foreman.

It is clear from a reading of LSA-R.S. 17:442 that tenure is only acquired in a particular parish or city. Foreman was a probationary teacher and the school board was not required to give him a hearing before his dismissal. Castille v. Evangeline Parish School Board, 304 So.2d 701 (La.App. 3 Cir. 1974) writ denied, 309 So.2d 342 (La.). The language of the writ denial in Castille indicates doubt about the constitutionality of LSA-R.S. 17:442. However, it has been held that probationary teachers do not have a constitutionally protected liberty or property interest in renewal of their teaching contracts which entitles them to procedural due process. Their discharge does not involve substantive due process, and the question of whether the action was arbitrary and capricious need not be reviewed. La-Borde v. Franklin Parish School Board, 510 F.2d 590 (5 Cir. 1975); Weathers v. West Yuma County School Disk R-J-1, 530 F.2d 1335 (10 Cir. 1976). Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

The most recent United States Supreme Court expression on the subject is found in Mt. Healthy City School Disk v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Mt. Healthy concerned Doyle, like Foreman nontenured, and said:

“Doyle’s claims under the First and Fourteenth Amendments are not defeated by the fact that he did not have tenure. Even though he could have been discharged for no reason whatever, and had no constitutional right to a hearing prior to the decision not to rehire him, . he may nonetheless establish a claim to reinstatement if the decision not to rehire him was made by reason of his exercise of constitutionally protected First Amendment freedoms. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).” 97 S.Ct. 574.

Foreman’s interference with the basketball program and conduct at the games appear to involve his right to freedom of expression. Foreman therefore met the burden of showing that this constitutionally protected conduct was a motivating factor in the board’s decision. However, the negative evaluation of Foreman by principal Sonnier on April 25, 1975, which graded him unsatisfactory in cooperation, adaptability, attitude toward supervision and loyalty, is sufficient to prove that the board would have reached the same conclusion absent the other non-permissible grounds for his dismissal. See Stewart v. Bailey, 561 F.2d 1195 (5 Cir. 1977); and Mustiful v. State, Bd. of Tr. for State Coll. & Univ., 347 So.2d 516 (La.App. 2 Cir. 1977).

For the foregoing reasons, the judgment of the trial court herein declaring plaintiff Foreman validly dismissed as a school teacher effective October 3, 1975, and awarding him wages of $1,956.75 to that date is affirmed. The taxing of trial court costs to the Vermilion Parish School Board is also affirmed. All costs of appeal are taxed to plaintiff Foreman.

AFFIRMED.

      . LSA-R.S. 17:442:
      “Each teacher shall serve a probationary term of three years to be reckoned from the date of his first appointment in the parish or city in which the teacher is serving his probation. During the probationary term the parish or city school board, as the case may be, may dismiss or discharge any probationary teacher upon the written recommendation of the parish or city superintendent of schools, as the case may be, accompanied by valid reasons therefor.
      Any teacher found unsatisfactory by the parish or city school board, as the case may be, at the expiration of the said probationary term, shall be notified in writing by the board that he has been discharged or dismissed; in the absence of such notification, such probationary teacher shall automatically become a regular and permanent teacher in the employ of the school board of the parish or city, as the case may be, in which he has successfully served his three year probationary term; all teachers in the employ of any parish or city school board as of July 31, 1946 who hold proper certificates and who have served satisfactorily as teachers in that parish or city for more than three consecutive years, are declared to be regular and permanent teachers in the employ of the school board of that parish or city.”


text:
    WANDA PETROLEUM COMPANY, Plaintiff-Appellee, v. MAC DRILLING INC., Defendant-Appellant.
    No. 6231.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Rehearing Denied Jan. 12, 1978.
    Writ Refused Feb. 24, 1978.
    Charles R. Browning, Maringouin, for defendant-appellant.
    Liskow & Lewis; Stephen T. Victory, New Orleans, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

This is an appeal from a judgment in favor of plaintiff on a petition to confirm an arbitration award.

The facts are not in dispute. On January 23,1975, Wanda Petroleum Company (Wanda) and Mac Drilling Inc. (Mac) entered into a contract for the drilling by Mac of a brine well for Wanda in St. Martin Parish, Louisiana. The contract between these companies provided in Article 26 thereof for the arbitration of any controversies or claims under the contract according to the rules then obtaining of the American Arbitration Association (AAA). As a result of the drilling of the well a dispute arose between the parties. Wanda made demand for arbitration with AAA as a result of which demand AAA appointed Mr. Percy M. Lyons, a petroleum geologist, as arbitrator. Pursuant to his appointment Mr. Lyons conducted a hearing after which he rendered an award in favor of Wanda ordering Mac to pay $23,280.90 plus all administrative fees and expenses of AAA. Thereafter, Wanda filed a petition for an order confirming the arbitration award in the Fifteenth Judicial District Court for the Parish of Lafayette. Mac answered this petition and prayed that the award of the arbitrator be vacated and a rehearing granted for the following reasons which we quote:

“10.
The award was totally unsupported by the evidence presented at the hearing of this matter and said award is contrary to the law and the contractual relationship existing between these two companies.
11.
Mac Drilling, Inc. alleges that there was evident partiality on the part of the arbitrator in favor of Wanda Petroleum Company as can be seen from an examination of the documents placed in evidence by both parties at the hearing of this matter, which documents are attached hereto and made a part hereof.”

On the issues as framed a hearing was held in the trial court as a result of which a judgment was rendered in favor of Wanda confirming the award of the arbitrator. This appeal followed.

In seeking' a reversal of the trial court judgment appellant assigns the following errors:

1. Failure of the trial court to allow Mac to question the arbitrator in connection with the disclosure and challenge procedures of AAA.

2. Failure to reverse and set aside the award of the arbitrator and order a rehearing before an impartial arbitrator under LSA-R.S. 9:4210.

We consider appellant’s contentions in the order set forth above.

During the course of trial in the lower court Mac sought to question the arbitrator concerning whether or not, following his appointment as arbitrator, he made disclosure to AAA of any past relationship between him and the parties or their counsel which disclosure was allegedly required by the rules of AAA.

Although the rules of the American Arbitration Association were not offered in evidence and are not part of the record and consequently are not before this court, appellant alleges in brief that Section 18 of such rules provides as follows:

Section 18. DISCLOSURE AND CHALLENGE PROCEDURE—
“A person appointed as neutral arbitrator shall disclose to the AAA any circumstances likely to affect his impartiality, including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with the parties or their counsel. Upon receipt of such information from such arbitrator or other source, the AAA shall communicate such information to the parties, and, if it deems it appropriate to do so, to the arbitrator and others. Thereafter, the AAA shall determine whether the arbitrator should be disqualified and shall inform the parties of its decision, which shall be conclusive.”

Appellant sought to establish at trial that the judgment confirming award should be vacated because Mr. Lyons violated the above rule by failing to make disclosure of any relationship between him and the parties or their counsel.

The evidence sought to be elicited was promptly objected to as irrelevant and beyond the pleadings. At that time appellant failed to request leave of court to amend its pleadings, pursuant to the provisions of LSA-C.C.P. Article 1154, so as to present this issue. The trial court sustained the objection and the evidence was excluded. Appellant complains that this was error. We disagree.

At the outset we observe that the rules of the American Arbitration Association are not made part of the record and we cannot therefore consider such rules or speculate as to their contents. It is well settled that an appellate court must decide the case on the evidence contained in the record. McKay v. Vesley, 163 So.2d 121 (La.App. 3rd Cir. 1964) and cases therein cited; Leger v. Delano Plantation, Inc., 352 So.2d 743 (La.App. 3rd Cir. 1977). Appellant having failed to offer in evidence the rules of AAA any questions seeking to show a violation of such rules by the arbitrator were clearly without foundation and irrelevant.

Further, we believe that the trial court properly excluded the evidence as not being within the issues made by the pleadings. Mac’s pleadings make no mention whatever that the award should be vacated because Mr. Lyons failed to disclose some information concerning his relationship with the parties or their counsel that would have disqualified him as arbitrator. Evidence intended to broaden or go beyond the pleadings is inadmissible if objected to. Under proper circumstances proof beyond the pleadings, even if objected to, may be admitted and considered when permission to amend the pleadings is requested and granted. LSA-C.C.P. Article 1154. Timely objection coupled with the failure to move for an amendment of the pleadings is fatal to an issue not raised by the pleadings. Bosworth v. New Orleans Federal Savings & Loan Association, 258 So.2d 191 (La.App. 4th Cir. 1972).

Appellant’s remaining contention, i. e., that the judgment confirming the award should be reversed because the record shows evident partiality on the part of the arbitrator, is equally without merit. We find that the trial court correctly decided this issue and are pleased to quote with approval his opinion in this regard.

“The only valid grounds for reversal or modification alleged by respondent was the allegation of evident partiality. The evidence demonstrated that the arbitrator, Percy M. Lyons, a consulting geologist since 1958 had infrequently performed services for Liskow & Lewis, the attorneys for Wanda. During the last twenty (20) years he did provide services on unitization applications for Liskow & Lewis on three (3) or four (4) occasions. He testified that he had performed services adverse to the position of the clients of Liskow & Lewis ninety (90%) per cent of the time. There was no evidence offered to show that Mr. Lyons had ever performed services of any kind for Wanda. The evidence offered in this hearing, rather than support the claim of partiality, shows without doubt that the arbitrator was, in fact, impartial.”

For the above and foregoing reasons the judgment of the trial court is affirmed. Appellant is cast for all costs of this appeal.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff and Appellee, v. Ernest EDWARDS, Defendant and Appellant.
    No. 6239.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.

      E. M. Nichols, Lake Charles, for defendant and appellant.
    Harold L. Thibodeaux, Asst. Dist. Atty., Lake Charles, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and JOHNSON, JJ.
   CULPEPPER, Judge.

Appellant asks that the trial court’s adjudication declaring him a habitual offender, based on three convictions for DWI within five years, be reversed and the proceeding dismissed. Suit was based on LSA-R.S. 32:1472. The defendant admitted having three convictions for DWI during a five-year period, September 10,1973, August 14, 1974, and September 17, 1975. Also, his driver’s license was suspended for a one-year and then a two-year period respectively after the second and third convictions.

Appellant contends that the imposition of an additional five year suspension is unconstitutional since it punishes the defendant twice for the same acts.

Procedural due process is required before a driver’s license may be revoked. State v. Page, 332 So.2d 427 (La.1976), and Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). This requires a meaningful hearing appropriate to the nature of the case.

The revocation of a driver’s license under the Habitual Offender statute does not constitute criminal punishment. It is a civil action and involves only the denial of the privilege of driving a motor vehicle on public highways of the state. There is no loss of liberty, no incarceration and no fine. State v. Page, supra, State v. Free, 321 So.2d 50 (La.App. 3rd Cir. 1976).

As this court stated in State v. Free, supra, at 54, “since this is a civil action and no deprivation of liberty is or can be contemplated, the stringent safeguards of criminal proceedings are not applicable.” We held that a guilty plea without benefit of counsel is not a defense in habitual offender adjudications under LSA-R.S. 32:1472, and that, in civil proceedings under this statute, the defendant is subject to cross-examination just as in any civil proceedings.

Defendant-appellant cites State v. Didier, 262 La. 364, 263 So.2d 322 (1972) for the proposition that the State cannot denominate the same act under two different crime headings and prosecute defendant under both, since this would be double jeopardy and violative of Louisiana Constitution of 1921, Article 1, Section 9. But, as noted above, an action based on the Habitual Offender statute is not a criminal proceeding. Defendants under this statute are not charged with a crime. They do riot face the loss of life or liberty. Therefore, the holding in the case relied on by appellant has no application in the present case.

The fact that this adjudication took place over a year and a half after the appellant’s last conviction for DWI is apparently the result of appellant’s failure to notify the Department of Public Safety of his change of address. The trial court found that a sufficient effort to locate Mr. Edwards had been made (Tr. 39). The court also noted that the original proceedings under the statute was filed on October 31, 1975. (Tr. 33). The trial took place on May 4, 1977, about a month after the appellant notified the Department of Public Safety of his current address. (Tr. 38).

This case involves no more than the application of well settled rules of law to a recurring fact situation. This is not a criminal proceeding and the appellant’s contention that double jeopardy should apply is without merit.

For the reasons assigned, we affirm the judgment appealed. Costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.


text:
    Josiah C. HAYES, Jr., Plaintiff-Appellant, v. WOODWORTH TRUCKING COMPANY et al., Defendants-Appellees.
    No. 6245.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Knight E. Doggett, Alexandria, for plaintiff-appellant.
    Gist, Methvin & Trimble, James T. Trim-ble, Jr., Alexandria, Bolen, Halcomb & Erwin by James A. Bolen, Jr., Alexandria, for defendants-appellees.

      Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Plaintiff has appealed from a judgment sustaining an exception of prescription which resulted in the dismissal of his personal injury suit.

At trial of the exception the parties stipulated to the following facts. Plaintiff sustained personal injury by accident on January 31, 1976. On Friday, January 28, 1977, plaintiff’s counsel mailed a petition for damages to the Clerk of Court of Allen Parish, Oberlin, Louisiana, in a properly stamped and addressed envelope, by depositing same in a United States Postal Service mail box at Alexandria, Louisiana. Affixed to the aforesaid mail box was a notice to the effect that next day delivery would be had in various zip code areas including 70644 which is the zip code number for Oberlin, Louisiana. The aforesaid petition bears a notation to the effect that it was filed in the Clerk of Court’s office for Allen Parish on February 1, 1977, by Ethel C. Cole, Deputy Clerk of Court.

The only other evidence presented at the hearing on the exception was the testimony of Ms. Ethel C. Cole, Deputy Clerk of Court for Allen Parish. A fair summary of Ms. Cole’s testimony is as follows. Mail addressed to the Clerk’s office is picked up at the post office by an employee of the Clerk on the morning of each work day. The mail js opened by the Clerk and then handed to Ms. Cole for handling. Ms. Cole goes through the mail and sorts out those items considered most urgent. The docketing and filing of suits are considered important functions and are given priority. On occasion, because of work volume, work commenced on one day, including docketing of pleadings, which is not completed is held over for completion on the following day. The records of the Clerk’s office indicate that on January 31, 1977, three suits were filed and on February 1, 1977, only the instant suit was filed.

In seeking a reversal of the trial court judgment appellant, relying on Cup-ples v. Walden, 124 So.2d 613 (La.App. 3rd Cir. 1960) writ refused, and Lambert v. Kelley, 270 So.2d 532 (La.1972), contends the trial court erred in failing to find he established by a preponderance of the evidence that his petition for damages was timely deposited with the Clerk of Court for Allen Parish, Louisiana.

We agree that, under our law, a suit is filed when it is timely placed in the hands of the clerk of court of competent jurisdiction for filing. LSA-R.S. 9:5801; LSA-C. C.P. Article 421; Cupples v. Walden, supra; and, Lambert v. Kelley, supra. We do not agree, however, that plaintiff has established by a preponderance of the evidence that the petition in this case was timely deposited with the Clerk of Court.

In Cupples and Lambert there was direct evidence establishing that the pleadings were actually delivered to the Clerk’s office or to a deputy clerk prior to the final filing date. In the instant case there is no evidence that plaintiff’s petition for damages was delivered to or deposited with the Clerk before the morning of February 1,1977. It is true the evidence establishes that the petition was mailed to the Clerk of Court on January 28,1977, however, this fact at most gives rise to a rebuttable presumption that the letter reached its destination in due time (Hortman Salmen Co. v. Continental Casualty Co., 170 La. 879, 129 So. 515 (1930)) and, in our opinion, standing alone is not sufficient to establish that the pleading was timely deposited with the Clerk of Court.

We find appropos the following statement by our brethren of the First Circuit in Dubois v. Olympic Insurance Co. et al., 231 So.2d 714 (La.App. 1st Cir. 1970), writ refused, concerning the effect of evidence as to proper mailing:

“Without commenting specifically on the findings of fact complained of by plaintiff, we are of the opinion that the evidence in this case is more than sufficient to rebut the presumption that the suit was received by the Clerk’s office. Even were this not so, we think that the placing of a suit in the hands of the Clerk for filing must be shown by more than presumptive evidence. The plaintiff must prove it by the preponderance of the evidence. If we were to hold otherwise, we should have to hold that the mailing of a suit to the Clerk is sufficient to interrupt prescription, and that is not the law of this state.
Plaintiff chose the means of transmitting his suit to the Clerk. He could have easily protected himself against non-arrival of the suit, or the loss thereof by the Clerk after receipt by the simple expedient of certifying or registering the letter. He must assume the responsibility for its non-arrival, in the absence of proof that it was received by the Clerk.”

For the above and foregoing reasons, the judgment appealed from is affirmed, at appellant’s costs.

AFFIRMED.


text:
    Olive WILLIS, Plaintiff-Appellee, v. COLONIAL LIFE & ACCIDENT INSURANCE CO., Defendant-Appellant.
    No. 6246.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Raggio, Farrar, Cappel & Chozen, Frederick L. Cappel, Lake Charles, for defendant-appellant.
    Perrell Fuselier, Oakdale, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

This case arises from a suit by Olive Willis, mother of Layton D. Willis, deceased, against Colonial Life & Accident Insurance Company, in connection with a whole life insurance policy in the sum of $10,000.00, naming Olive Willis as beneficiary. From judgment in favor of plaintiff, Colonial Life & Accident Insurance appeals, asserting the following as errors of the trial court:

(1) The trial court erred in holding that Colonial had issued an insurance policy on the life of Layton D. Willis;
(2) The trial court erred in not finding that plaintiff had made material misrepresentations in the application for insurance.

On February 19, 1975, in the Oakdale business establishment of plaintiff, Olive Willis was contacted by G. C. Perry, an independent agent of defendant, Colonial Life and Accident Insurance Company (hereinafter referred to as “Colonial”). At that time, she applied for the issuance of two (2) life insurance policies, one on the life of Layton D. Willis, her son, aged sixteen (16), and the other on the life of James Willis, her husband. Under both applications, Olive Willis was named as beneficiary. For neither application was a medical examination requested by Perry. After completion of the application, plaintiff, Olive Willis, paid the initial premiums thereon and was given conditional receipts therefor, the pertinent language of which was as follows:

“(1) If a full first premium has been paid at the time of completion of the application according to the mode of premium payment and plan selected, the insurance applied for will take effect as of the last occurring of the following dates: (a) as of the date of the receipt, (b) the date of completion of any required medical examination, or (c) the date specifically requested in the application, provided that on such date the proposed insured(s) is acceptable to the Company as a standard risk(s) for the policy applied for as to the amount, plan, and rate of premium declared paid. Otherwise, there shall be no liability on the part of the Company, as a result of this receipt, except to refund payment upon surrender of this receipt.”

The application involving Layton Willis was received at defendant’s office on February 24, 1975. According to Jonathan N. Dresser, defendant’s chief life underwriter, the application was incomplete in that the signature of Layton D. Willis was missing; it was returned to plaintiff so that it could be completed, and it was received by defendant in completed form on March 31, 1975. G. C. Perry had no knowledge of the incompleteness of the application and of its return to plaintiff. Defendant’s policy insuring James Willis was issued on April 21, 1975, to G. C. Perry for delivery to plaintiff.

On March 3,1975, Layton D. Willis, while sitting in his parked and running automobile in the parking lot of Oakdale General Hospital, died of carbon monoxide poisoning. In June, 1975, defendant’s claims department advised plaintiff that no life insurance policy insuring her son had been issued as a result of the February 19, 1975, application therefor,' and consequently denied plaintiff’s claim for benefits. As of yet, the premium thereon has not been returned to plaintiff.

Colonial bases its allegations of error upon two arguments: (1) That according to the conditional receipt attached to the application, a policy of insurance was not to be issued until such time as Layton D. Willis was acceptable to Colonial as a standard risk for the policy applied for as to the amount, plan, and rate of premium paid (It cites the case of Gonsoulin v. Equitable Life Assurance Society, 152 La. 865, 94 So. 424 (1922) as authority for that proposition.); and (2) that, in the alternative, had a policy of insurance been issued, Colonial would not be liable thereon because plaintiff made material misrepresentations in' the application therefor.

I

ISSUANCE OF INSURANCE POLICY

The rule of law in the case of Gon-souiin v. Equitable Life Assurance Society, supra, is inapplicable to the case at bar. In Gonsoulin the Louisiana Supreme Court was confronted with a somewhat similar conditional receipt. In that case, the receipt provided:

“Received of Mr. John D. Walet, No. A-628916, three hundred and fifty-three and 90/100 dollars, the first annual premium on proposed insurance of $- on the life of John D. Walet, for which the above application is this day made to the Equitable Life Assurance Society of the United States. Insurance subject to the terms and conditions of the policy contract shall take effect as of date of this receipt, provided the applicant is on this date, in the opinion of the society’s authorized officers in New York, an insurable risk under its rules, and the application is otherwise acceptable on the plan and for the amount and at the rate of premium applied for; otherwise the payment evidenced by this receipt shall be returned on demand and the surrender of this receipt.” Gonsoulin v. Equitable Life Assurance Soc., supra, at page 425.

However, the facts of payment of the initial premium and issuance of such a receipt are the main similarities as between the facts of the Gonsoulin case and the case at bar. In Gonsoulin, a medical examination by defendant-insurer’s regularly employed physician was required before the issuance of the life insurance policy. Although a medical examination (by another physician) had been conducted on the date of the application, the examination was not complete, and a request for elaboration of the answers to a few medical questions was made. At the time that the report of that examination was received by defendant, defendant rated the proposed insured as an abnormal, and not standard, risk. Upon receipt of more medical information as to the proposed insured, the insurer rated the proposed insured at a grade well below a standard risk. The insurer would not issue any policy until such time as it received a medical report from its regularly employed physician.

The proposed insured died prior to the time in which the Society’s authorized officers in New York had examined his medical records to determine whether or not he was an insurable risk. The Supreme Court held that the insurance policy was not in effect as of the date of the death of the proposed insured, and it expressed those sentiments in the following language, at page 427:

[1] By the terms of the receipt, which contains the only contract between the parties in the matter, it is evident that the insurance applied for was intended to take effect as of date June 26, 1917, but only upon condition that on that date, in the opinion of defendant’s authorized officers in New York, Walet was an insurable risk, not simply on any terms or conditions, or at any premium, but, under its rules, on the plan and for the amount and at the rate of premium applied for, if found otherwise acceptable. It is equally clear that, for substantial reasons, up to the time that Walet died, the risk had not been found acceptable, under the rules of defendant, by its authorized officers, on the plan, for the amount, and at the premium applied for, but, to the contrary, it was found that, if Walet should be found insurable at all, it would be at a considerably increased premium. It follows, therefore, that the insurance on that plan and at the rate proposed did not become effective; and, as that was the only plan that defendant could accept or reject, being the only one submitted to it, it follows that insurance in no amount became effective.

In this case, it was a company policy of Colonial to forego medical examination for an insurance application of any person of sixteen years of age or less, according to the testimony of Dresser and Perry. This procedure had been followed by Colonial for previous applications on Layton Willis in 1972 and 1974. On February 14, 1972, one such application was completed. A policy of life insurance was issued, but had lapsed for non-payment of premiums. On August 29,1974, another application had been filed, but no policy was issued because the initial premium check was dishonored. For neither of those applications had a medical examination been required or conducted.

Colonial now argues that the policy became effective on the date of receipt of application only if at that time Layton Willis was acceptable to Colonial as a standard risk. It alleges that Layton Willis was not a standard risk.

The conditional receipt issued to plaintiff in this case provided that the insurance applied for would take effect as of the last occurring of the following dates: (a) the date of the receipt; (b) the date of completion of any required medical examination or (c) the date specifically requested in the application, provided that on such date the proposed insured was acceptable to the company as a standard risk for the policy applied for as to the amount, plan and rate of premium declared paid. As noted above, no medical examination was required, and no date for effectuation of the policy was specifically requested in the application. Therefore, the only issue in this connection is whether the proposed insured was in fact acceptable to the company as a “standard risk” as of the date of the receipt.

Colonial alleges that Layton Willis was not a standard risk as of the date of the receipt. We do not agree with that contention. The determination by Colonial that Layton Willis was not an acceptable risk was made after his death, and is based upon medical evidence discovered by Colonial subsequent to his death. There is no evidence introduced in this case, as was done in Gonsoulin, to show upon what standards or criteria Colonial would make a determination that Layton Willis was not an insurable risk as to the amount, plan applied for, and rate of premium declared paid. Colonial had previously issued a policy of insurance on Layton Willis with no more information and/or evidence than was presented in the policy applied for in the instant matter; and because of Colonial’s procedure of not requiring medical examination of persons sixteen years of age or less, Colonial would not have required medical information and/or examination for the policy applied for which is the subject of this controversy.

The trial judge obviously concluded from the testimony of Dresser and Perry that a policy of insurance was either actually issued and never delivered to plaintiff, or would have been issued with the effective date thereof being the date of the conditional receipt. An additional consideration for the trial court’s ruling no doubt rests in part on the fact that the policy of insurance actually issued to James Willis (which had been applied for at the same time as the one on Layton Willis) was not issued until April 21, 1975, more than sixty days after the date of the conditional receipt. Obviously Colonial was slow in issuing its policies. The trial judge could reasonably conclude that the policy of insurance on Layton Willis actually was issued or would have issued on April 21, 1975, with the effective date thereof being the date of the receipt, February 19,1975. For all of these reasons, we find no fault in the ruling of the trial court.

We now pass to the issue of the failure of the application to mention the fact that Layton Willis had been hospitalized on two occasions during the year 1974.

II

ISSUE OF MISREPRESENTATIONS

On May 9,1974, Layton Willis was admitted to Oakdale General Hospital as a result of a “blackout spell”. He was treated by his family physician, Dr. Lowry, of Oakdale, and no definitive diagnosis was rendered. Dr. Lowry hospitalized Layton Willis again at Oakdale General Hospital for the period of May 15 through May 17, 1974, after receiving a history that the patient had passed out several times. Dr. Lowry’s diagnosis was “diabetes mellitus”.

Dr. Lowry referred Layton Willis to a specialist, Dr. William Foster, a neurosurgeon in Lake Charles. The patient was hospitalized in Lake Charles Memorial Hospital for the periods June 16 through June 18, 1974, and July 21 through July 25, 1974. He was treated for a condition diagnosed by Dr. Foster as “fibrous dysplasia of the skull with secondary associated seizure disorder”. Dr. Foster prescribed anti-convulsant medication and made arrangements for a re-examination of Willis in six months.

In order for an insurer to avoid liability upon a policy which it has issued, it must establish that (1) a misrepresentation was made in the application; (2) the misrepresentation was material to the risk, and (3) the misrepresentation was made with an actual intent to deceive. Gay v. United Benefit Life Ins. Co., 233 La. 226, 96 So.2d 497 (1957); Stoma v. Prudential Ins. of America, 281 So.2d 871 (La.App. 3 Cir. 1973); First Fed. Sav. & Loan Ass’n v. National Old Line Ins. Co., 254 So.2d 497 (La.App. 3 Cir. 1971); Hendricks v. Connecticut Gen. Life Ins. Co., 244 So.2d 249 (La.App. 3 Cir. 1971).

In this case Colonial has not borne its burden of proof. Colonial alleges that plaintiff, Olive Willis, did not honestly and truthfully answer the medical questions contained in the 1975 application, which made no mention of Layton’s prior illness and treatment. Such allegation is denied by plaintiff. She asserts that she truthfully answered all questions propounded to her by G. C. Perry, defendant’s agent who was filling out the application. The trial court accepted plaintiff’s recitation of facts rather than that of Perry. It had a reasonable evidentiary basis to rule as it did, and its judgment is affirmed. Canter v. Koehring Co., La., 283 So.2d 716 (1973); cases too numerous to cite.

Costs of this appeal are assessed against defendant-appellant.

AFFIRMED.


text:
    Succession of James Ware GARDINER.
    No. 6247.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Rehearing Denied Jan. 12, 1978.
    Writ Refused Feb. 24, 1978.

      Camp, Carmouche, Palmer, Carwile & Barsh, J. L. Cox, Lake Charles, for appellant.
    Liskow & Lewis, Stephen T. Victory and Leon J. Reymond, Jr., New Orleans, Stock-well, Sievert, Viccellio, Clements & Shad-dock by Scott J. Pias, Lake Charles, Anderson, Leithead, Scott, Boudreau & Savoy by Edward D. Myrick, Lake Charles, Scofield, Bergstedt & Gerard, Richard E. Gerard, Jr., Lake Charles, for appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

James Ware Gardiner, a resident of Connecticut, died in Nevada, on November 6, 1976. His niece, Katherine Garrison Brewer, was appointed administratrix of his Louisiana estate on December 6, 1976. The three executors named in Gardiner’s will, Charlotte Tucker, Albert Krafcheck and Aaron R. Frosch, filed a petition December 17, 1976, for Louisiana probate of the foreign testament and their appointment as ancillary executors. They had previously been confirmed as executors by a Connecticut probate court. Charlotte Tucker was appointed Louisiana agent for service of process by the other two. The executors also filed a motion to have Ms. Brewer removed as administratrix and for an accounting of her administration.

The trial court judgment recognized the foreign will as the last will and testament of James Ware Gardiner and ordered it executed. Ms. Brewer was removed as ad-ministratrix and the executors of the Connecticut will were confirmed as the Louisiana succession representatives. Ms. Brewer was ordered to render an accounting of her administration and to relinquish her records to the executors. Ms. Brewer has appealed from the trial court judgment, contending that the trial court erred in revoking her valid appointment as administratrix, and that her removal had no statutory or jurisprudential basis.

It is undisputed that the Gardiner Louisiana estate, which has immovable assets exceeding one million dollars in value, requires a succession representative.

The issue is whether the trial court erred in revoking Ms. Brewer’s appointment as administratrix.

LSA-C.C.P. art. 3182 governs removal of a succession representative:

“The court may remove any succession representative who is or has become disqualified, has become incapable of discharging the duties of his office, has mismanaged the estate, has failed to perform any duty imposed by law or by order of court, has ceased to be a domiciliary of the state without appointing an agent as provided in Article 3097(4), or has failed to give notice of his application for appointment when required under Article 3093.
The court on its own motion may, and on motion of any interested party shall, order the succession representative sought to be removed to show cause why he should not be removed from office. The removal of a succession representative from office does not invalidate any of his official acts performed prior to his removal.”

The trial court specifically found that Ms. Brewer had not acted improperly in her administration. (TR. 171). However, the trial court concluded that Ms. Brewer had been appointed on the basis of incomplete information and would not have been appointed had the court been aware of the existence of the will and the Connecticut proceedings. Ms. Brewer’s petition for appointment alleged that any document purporting to be Gardiner’s will was invalid under Louisiana law.

The testator has the privilege of choosing his own executor and the court can do so only if the one named is “dead, disqualified, or declines the trust”, LSA-C.C.P. art. 3083. The executors contend that there cannot be an administrator of a testate succession; and that Ms. Brewer actually served as a provisional administratrix under LSA-C.C.P. arts. 3111 and 3112.

Absent a specific provision of law allowing the court to discharge an administrator and confirm the executor named by the testator, authority is found in LSA-C.C.P. art. 191 which provides:

“A court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.”

It might also be reasoned that Ms. Brewer became “disqualified” under LSA-C.C.P. art. 3182, but we prefer to hold that the appointing court was entitled to discharge her and confirm the testamentary executors.

This is precisely the approach used by the Supreme Court in the case of Dixon v. D’Armond, 23 La.Ann. 200 (La., 1871) which, because of its admirable brevity, we will quote in its entirety, omitting citations:

“The defendant has appealed from a judgment recognizing and confirming the plaintiff, as testamentary executrix in Louisiana of the last will of B. F. Dixon, who died at his residence in Mississippi, already duly registered and its execution ordered, directing letters testamentary to issue to her on her taking oath and giving bond, and rescinding the order appointing him administrator of the succession of said deceased in the parish of East Felici-ana.
^ * * * * *
“It was the duty of the probate judge, upon due application, to cause the will from Mississippi, duly proven, to be registered here, its execution ordered, and the testamentary executrix named in it be recognized and letters testamentary issued to her upon taking oath and giving bond. Such an order would necessarily supersede the appointment of an administrator appointed here.”
******

Discharge of Ms. Brewer is supported by LSA-C.C.P. art. 3404 which provides that a succession representative appointed by a court of decedent’s domicile outside Louisiana shall be given priority in appointment of a Louisiana representative. Under this article and LSA-C.C.P. art. 3082, which provides that the person named in a testament as executor shall be confirmed unless disqualified under article 3097, the three executors named in Gard-iner’s will are entitled to be appointed as his Louisiana executors. A testator has the privilege of naming his own executor and the trial court correctly revoked the appointment of Ms. Brewer as administratrix. Once the executors sought appointment as ancillary executors in Louisiana they were entitled to priority. This in no way invalidates actions taken by Ms. Brewer as ad-ministratrix. Appointment of an adminis-tratrix in the absence of any information about the existence of a will must yield to the testator’s choice when that choice is not disqualified under LSA-C.C.P. art. 3097.

For the foregoing reasons, the judgment of the trial court herein is affirmed at the cost of appellant, Katherine Garrison Brewer.

AFFIRMED.

      . LSA-C.C.P. art. 3083:
      “If no executor has been named in the testament, or if the one named is dead, disqualified, or declines the trust, on its own motion or on motion of any interested party, the court shall appoint a dative testamentary executor, in the manner provided for the appointment of an administrator of an intestate succession.”

      . LSA-C.C.P. art. 3111:
      “The court may appoint a provisional administrator of a succession, pending the appointment of an administrator or the confirmation of an executor, when it deems such appointment necessary to preserve, safeguard, and operate the property of the succession. On the application of an interested party, or on its own motion, when such an appointment is deemed necessary, the court may appoint a qualified person as provisional administrator forthwith.”

      . LSA-C.C.P. art. 3112:
      “Except as otherwise provided by law, a provisional administrator has all of the authority and rights of an administrator, and is subject to the same duties and obligations, in the discharge of his functions of preserving, safeguarding, and operating the property and business of the succession.”

      . LSA-C.C.P. art. 3404:
      “When a succession representative has been appointed by a court of the decedent’s domicile outside Louisiana, priority shall be given to him in the appointment of a representative in Louisiana, unless he is disqualified under Article 3097. Otherwise, priority shall be given in the appointment of a representative as provided in Article 3098.”

      . LSA-C.C.P. art. 3082:
      “Unless the person named in the testament as executor is disqualified on any of the grounds assigned in Article 3097, the court shall render an order upon his petition for confirmation, confirming him as testamentary executor and directing the issuance of letters testamentary to him after he has taken his oath of office and furnished security, if required.”

      . LSA-C.C.P. art. 3097:
      “No person may be confirmed as testamentary executor, or appointed dative testamentary executor, provisional administrator, or administrator who is:
      (1) Under twenty-one years of age;
      (2) Interdicted, or who, on contradictory hearing, is proven to be mentally incompetent;
      (3) A convicted felon, under the laws of the United States or of any state or territory thereof;
      (4) A nonresident of the state who has not appointed a resident agent for the service of process in all actions and proceedings with respect to the succession, and caused such appointment to be filed, in the succession proceeding;
      (5) A corporation not authorized to perform the duties of the office in this state; or
      (6) A person who, on contradictory hearing, is proved to be unfit for appointment because of bad moral character.”