author: JONES, Judge.

text:
    RED RIVER REALTY, INC., Plaintiff-Appellant and Appellee, v. RELMM CORPORATION, Defendant-Appellant and Appellee.
    No. 13877.
    Court of Appeal of Louisiana, Second Circuit.
    June 12, 1979.

      Bethard & Davis, Coushatta, for plaintiff-appellant and appellee.
    Kennedy, Goodman, Donovan & Parnell, Shreveport, for defendant-appellant and ap-pellee.

      Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff appeals a judgment rejecting its demands for damages allegedly sustained to 9 acres of its subdivision by the defendant’s construction of a 4½-⅛⅛ high-pressure natural gas pipeline 12y2-feet north of the north line of the subdivision for a distance of approximately 1600-feet along the north side of the subdivision. Plaintiff was advised at trial by testimony introduced by defendant that approximately 100-feet of this line was actually constructed in the subdivision across a small triangle 65 X 73 X 100 feet located in the very northwest corner of the subdivision. The trial court construed the evidence of the construction of the pipeline in plaintiff’s subdivision to constitute a C.C.P. Article 1154 amendment to the pleadings and awarded plaintiff damages for this taking in the amount of $1,200 and assessed all court costs to defendant. Defendant appealed the judgment against it.

On July 30, 1976 defendant, in an expropriation proceedings, acquired a 25-foot right of way along the north line of plaintiff’s subdivision and completed construction of a 4½-⅛⅛ gas pipeline in the right of way in September, 1976. Plaintiff commenced development of its subdivision in 1967 and had sold 23 lots by September, 1976.

Plaintiff contends that the existence of the gas line along the north boundary of its subdivision depreciates the value of its property. It contends because people fear an accident may occur in connection with the line, they will no longer purchase lots in an area within 400-feet of the pipeline. Plaintiff contends defendant is depriving it of the right to utilize its property adjacent to the pipeline as a subdivision, contrary to the prohibition contained in LSA-C.C. Art. 667:

“Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”

ISSUES

The issues are: (1) was the trial court correct in rejecting plaintiff’s claim for damages based upon the contention that the existence of the pipeline made the acreage of the subdivision adjacent to it unsuitable for home sites? (2) was the trial court correct in awarding $1,200 damages for defendant’s trespass and taking for the pipeline by considering the pleadings amended by defendant’s evidence that the pipeline crossed upon the subdivision? and (3) did the trial court abuse its discretion when it assessed the defendant with all cost?

The trial court made the following statement in rejecting the primary demands of plaintiff:

“This court concludes that the damages sought by plaintiff as the result of the construction of the gas pipeline are only speculative and have no merit.”

This pipeline was a gathering line used solely for the purpose of delivering gas produced from one well to defendant’s main line. The line was constructed with carefully cleaned, treated and wrapped pipe of 2,100 pounds per square inch capacity and was tested to 1,600 pounds per square inch and normally operated under pressure of 240-250 pounds per square inch. The welds were x-rayed to assure their quality and the line was equipped with anti-corrosive features. Operators of the gas line check it frequently.

Plaintiff does not contend that the line was not properly installed, nor does it make any complaint about the manner in which the line is being operated. Evidence establishes construction of the line was well supervised and it far exceeds the specifications required by the U.S. Department of Transportation and the Louisiana Department of Conservation.

Plaintiff established there had been numerous pipeline explosions, several in the State of Louisiana, one in Natchitoches Parish, adjacent to Red River Parish where the subdivision is located. It contends because of these occurrences and the publicity given to the damages and deaths caused from them, people are afraid to construct their homes in the proximity of high-pressure natural gas lines. It asserts that the 9 acres of its subdivision adjacent to the gas line could only be used for growing pine timber. Plaintiff had two witnesses who had little appraisal experience, but substantial knowledge of . real estate values in the area, who testified the 9 acres adjacent to the pipeline were no longer available for subdivision lots. Plaintiff had one witness with substantial appraisal experience who testified the property before the construction of the pipeline was worth $4,166 per acre for use as home sites and that following the construction of the pipeline was worth only $200 per acre for growing pine timber.

These witnesses all expressed the opinion that because of the existence of the pipeline, people would not buy lots for home sites because they were well aware of the dangers inherent in a high-pressure gas line. Plaintiff also offered the testimony of a psychiatrist who expressed the opinion that a minority of people who were aware of the prior pipeline explosions would be reluctant tó purchase a home site adjacent to a 4V2-inch pipeline.

Defendant offered testimony of a highly qualified expert appraiser who testified the existence of defendant’s pipeline adjacent to plaintiff’s subdivision would have no effect upon the value of the plaintiff’s lots because people would not decline to purchase them because of the existence of the pipeline. Testimony of this witness was well reasoned and logical and based upon a thorough study of other subdivisions constructed in the proximity of high-pressure pipelines. This witness made a study of an exclusive townhouse subdivision on the south side of the City of Shreveport which was constructed around an existing 20-inch high-pressure gas transmission line. The only adverse effect that the gas transmission line had upon this development was the inability of the developer to construct houses upon the pipeline right of way. The right of way was used for the construction of streets, parking areas and tennis courts. The homes were constructed within a very few feet of the edge of the right of way and those closer to the right of way were sold for comparable prices and just as fast as the homes constructed at a further distance from the right of way. The study revealed in many cases the houses adjacent to the pipeline were the end unit of a group of houses and those next to the right of way commanded a premium over other houses in the unit. The study further revealed that the location of the houses next to the right of way did not adversely effect their resale. Many of the initial purchasers of those homes later sold them at a good profit.

This witness found similar results on another south Shreveport subdivision traversed by a high-pressure Texas Eastern products line. Thirty-two of the lots in this subdivision sold for $100 per front foot, one of the $100 per front foot lots had the pipeline easement on the lot and while no consideration was given for the pipeline easement, the existence of the easement in the lot did not have the effect of decreasing the lot price. Another lot in the subdivision which had one line included within the lot sold for $104.56 per front foot. Although nothing was paid for the pipeline easement, the existence of the line did not detract from the price of the lot.

This expert made a study of a subdivision in the City of Baton Rouge, Louisiana constructed around an existing pipeline right of way that contained two petroleum products pipelines. The developer of this subdivision advised the appraiser that lots backing up to the pipeline had no buyer resistance either from builders who would buy the lots for speculative building of homes or to home buyers to whom he would sell. The house buyers preferred the houses built on lots backed up to the pipeline because that prevented other houses from being built upon property adjacent to their rear property lines. Two of the average lots in this subdivision located on the pipeline sold for $7,800 each and one larger lot immediately adjacent to the pipeline sold for $15,-400. The appraiser made the following observation about the effect of a third line that was being installed in the right of way at the time of his study:

“It is also interesting to note the construction continued on the lots backing up to the pipeline even though there is at present construction on the third pipeline going into the right of way space. The homes that are built in this area are selling just as fast if they back up to the pipeline.”

This appraiser’s study of the effect of high-pressure natural gas and petroleum products pipelines upon a subdivision contains pictures and plats, all of which fully support his conclusions that defendant’s line adjacent to plaintiff’s subdivision will not decrease the value of the lots in the subdivision.

One of defendant’s witnesses who testified he had performed anti-corrosive protection work upon the pipeline at the time it was installed testified he lived in a subdivision in the City of Shreveport through which runs an 8-inch products (gas and jet fuel) transmission line. Homes in the $100,-000 class range are located within 50-75 feet of each side of this pipeline. The subdivision was constructed subsequent to the installation of the pipeline. Another of defendant’s witnesses who testified concerning the disposition of the gas transmitted in defendant’s line stated that one of the largest and newest subdivisions located in the City of Pineville, Louisiana was bisected by a 16-inch high-pressure gas pipeline and the subdivision contained homes in the $50,-000 plus range.

Plaintiff contends the trial court erred because it failed to follow the decision of Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975) wherein the supreme court reversed a decision which sustained an exception of no cause of action to a petition for damages caused to plaintiff’s land adjacent to defendant’s right of way wherein a 24-inch high-pressure gas pipeline had been constructed. The supreme court pointed out that:

“According to the petition, in the opinion of real estate experts, damage results to lands abutting pipeline rights of way.” Id. at 95

The court set forth the issue presented as follows:

“Does the construction of a hazardous high-pressure gas pipeline adjacent to and within fifteen feet of the property line separating contiguous estates give rise to an action for damages caused by this proximity which impairs the market value and full use of the neighboring estate?” Id. at 96

The Hero decision recognized that LSA-C.C. Art. 667 provides that a proprietor must not use his estate in such a manner as to cause damage to a neighbor’s property and emphasized the rule does not require fault or negligence as a basis for the damage:

“As expressed in the Article, the principle is a limitation the law imposes upon the rights of proprietors in the use of their property. It is a species of legal servitude in favor of neighboring property, an expression of the principle of sic utere. An activity, then, which causes damage to a neighbor’s property obliges the actor to repair the damage, even though his actions are prudent by usual standards. It is not the manner in which the activity is carried on which is significant; it is the fact that the activity causes damage to a neighbor which is relevant. Chaney v. Travelers Insurance Company, 259 La. 1, 249 So.2d 181 (1971). The article expresses, as this Court has often stated, a doctrine of strict liability which does not depend upon deliction. . . . ” Id. at 97.

The court pointed out that alleged facts are considered true for the purpose of the exception of no cause of action and found among the facts considered to be true the following:

“According to reliable evidence property value is reduced within the 250 foot corridor surrounding the pipeline right of way.
The hazard and danger to the Hero property is illustrated by four specific incidents involving explosions of gas lines. Also, real estate appraisers are of the opinion that such a gas pipeline depreciates the surrounding property.” Id. at 98

In Hero the court quotes C.C. Art. 668 which provides:

“Art. 668. Although one be not at liberty to make any work by which his neighbor’s buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.
Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbor’s [neighbor’s] house, because this act occasions only an inconvenience, but not a real damage.” Id. at 96.

The court recognized this Article requires an adjoining property owner to tolerate certain inconveniences and the application of C.C. Articles 667 and 668 evolves into:

“The problem is one which involves the nature of the intrusion into the neighbor’s property, plus the extent or degree of damage.” Id. p. 98

Hero requires plaintiff’s cause of action be established by convincing evidence.

The trial judge, in his excellent written reasons for decision, observed that all of the earlier explosions of pipelines contained in plaintiff’s illustrative list involved much larger lines than the gathering line owned by defendant. There is substantial evidence in the record in the form of testimony of defendant’s expert appraiser and two other witnesses to support the finding of the trial judge that plaintiff failed to prove its lot sustained damage because of the proximity of the pipeline. If there is any buyer resistance to the lots in plaintiff’s subdivision by virtue of the existence of the gas gathering pipeline, it is of a slight nature and falls within the category of “inconvenience, but not a real damage”. LSA-C.C. Art. 668. The case is distinguishable from Hero because all the facts alleged in Hero for the purpose of the exception were accepted as true, whereas the trial judge here performed the function of making the factual determination and it is not to be disturbed unless clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find the record fully supports the trial judge’s factual determination.

During the trial defendant established that its pipeline passed through the northwest corner of plaintiff’s subdivision for a distance of approximately 100-feet. There was a small triangle 65 X 73 feet in the subdivision north of defendant’s line.' Defendant’s expert appraiser testified that plaintiff had been damaged by this taking in the amount of $300, this damage consisted of the sum of $180 for the part taken and severance damage in the amount of $120. Plaintiff was unaware until advised by defendant at trial that this taking had occurred, but made no objection to defendant’s evidence concerning the taking and the amount of the damage.

The trial court found the introduction of this evidence by defendant expanded the pleadings wherein plaintiff had claimed damages only for the depreciation in the value of its property by virtue of the existence of the pipeline 12V2-feet north of the subdivision line. The trial court left the case open for plaintiff to offer evidence of its damages caused by defendant’s construction of the pipeline in the subdivision. Plaintiff and defendant stipulated the court could consider the amount of damages based upon the testimony of defendant’s appraiser, all trial exhibits and a letter by plaintiff’s appraiser wherein he expressed the opinion that plaintiff had been damaged to the extent of $2,500 by defendant’s construction of the pipeline across the northwest tip of plaintiff’s subdivision. Plaintiff was awarded the sum of $1,200 for the servitude and severance damages for this taking.

Defendant contends the issue was not properly before the court because it was not included within plaintiff’s petition. Defendant asserts good faith compelled it to disclose all the facts in connection with its pipeline in plaintiff’s subdivision. It contends that not to have made this disclosure would- have misled the court on the trial of the case, and under these circumstances, it should not be considered to have consented to an enlargement of the pleadings by virtue of having offered the evidence that its pipeline crossed the subdivision. Defendant could have made this disclosure to plaintiff sometime prior to the trial, but waited to trial before voluntarily advising plaintiff of its trespass. Under these circumstances, we agree with the trial judge that defendant clearly consented to inject this issue of its having taken a part of plaintiff’s property and its version of the award plaintiff should receive. This evidence was not essential to the determination of the primary issue created by the pleadings, that being the effect of defendant’s pipeline upon plaintiff’s subdivision.

LSA-C.C.P. Article 1154 provides:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading . . . ”

See the decision of State, Department of Highways v. Sotile, 309 So.2d 873 (La.App. 1st Cir. 1974) wherein pleadings were expanded by testimony of a landowner’s appraiser offered without objection to establish a landowner was entitled to additional compensation for 8.59 acres which he had not sought in the pleadings.

Defendant contends the trial court’s award was excessive. The highest price plaintiff had received for any lot in the subdivision was $1,200 and this was for a lot sold in September, 1976 which had an 80-foot front with a depth of 170-feet. This lot contained 13,600 square feet. Defendant’s pipeline occupies 2,500 square feet of plaintiff’s property and has the effect of leaving a triangle containing 2,372 square feet separated from the remainder of the subdivision.

Defendant has permanently damaged 4,872 square feet of plaintiff’s property. This is a far smaller area than the 13,600 square feet contained in the lot for which plaintiff received $1,200. We believe $600 is a realistic evaluation of the amount plaintiff should receive and the trial judge’s award of $1,200 is excessive.

Defendant complains it was assessed with legal interest upon plaintiff’s damage from date of judicial demand, whereas there was no demand contained in plaintiff’s suit for the damages it was awarded. We find these damages shall bear judicial interest from the date the pleadings were expanded during the trial of the case on November 7, 1977.

Defendant contends the trial court erred in assessing it with all court costs in this matter.

In this litigation plaintiff’s total demand contained in its pleading for damages in the amount of $48,666 was rejected. It only made a recovery by virtue of the pleadings being expanded by defendant’s evidence, and this recovery was nominal as compared to the amount of its demand.

LSA-C.C.P. Art. 2164 provides that this court may assess costs as it considers equitable:

“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

In the decision of Miller v. Housing Authority of New Orleans, 175 So.2d 326 (La.App. 4th Cir. 1965) the court in discussing the costs provisions of C.C.P. Art. 2164 made the following observation:

“In conformity with the rationale emanating from Article 2164 of the LSA-Code of Civil Procedure, an appellate court may tax the costs of the lower or of this court, or any part thereof, against any litigant involved in the suit as in its judgment may be equitable. The exercise of this judicial discretion is permitted and exists by virtue of the statutory law and jurisprudence of this state, and it is now rather well established.” Id. at 332-333.

We find the trial court abused its discretion when it assessed all costs to defendant and we have determined that it is fair and equitable for costs to be assessed equally to plaintiff and defendant.

For the reasons assigned, we amend Paragraphs No. 2 and 3 of the trial court’s judgment to read as follows:

2. On the actual trespass for construction of a pipeline on plaintiff’s property, there is judgment in favor of plaintiff, Red River Realty, Inc., and against defendant, Relmm Corporation, in the full and true sum of Six Hundred and No/100 ($600.00) Dollars, with legal interest thereon from the date of November 7, 1977 until paid.
3. Red River Realty, Inc. and Relmm Corporation are each assessed for one-half of the court costs.

As AMENDED, the judgment is AFFIRMED.


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    J. P. MESSINA CONTRACTORS, INC., Plaintiff-Appellant, v. CORTEZ CONSTRUCTION CORPORATION, Defendant, American Bank & Trust Company, Intervenor and Appellee.
    No. 7025.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 1979.

      Coleman, Dutrey, Thomson, Meyer & Ju-risich by Jack W. Thomson, Jr., New Orleans, for plaintiff-appellant.
    Andrus & Doherty, James P. Doherty, Jr., Opelousas, for defendant-appellee.
    Before WATSON, FORET and CUTRER, JJ.
   WATSON, Judge.

This is an appeal from a judgment by the trial court which held that the intervenor’s chattel mortgage primes the judicial mortgage held by plaintiff. J. P. Messina Contractors, Inc., plaintiff and appellant, obtained a judgment on open account against the defendant, Cortez Construction Corporation, in the amount of $43,194.10 on April 5, 1977. When Messina had a writ of fi. fa. issued and seized certain construction equipment, including trucks, graders, welding machines and the like, all belonging to Cortez and located at Cortez’s headquarters in St. Landry Parish, the American Bank intervened, asserting that it holds a chattel mortgage on the equipment seized, that the mortgage secures a promissory note, that Cortez is still indebted on the note in the amount of $294,636.53, and that the bank’s privilege is superior to the rights of Messi-na. The American Bank prayed that the bank’s privilege be recognized as superior to the judgment of Messina; and that the bank be paid by preference and priority out of the sale of the property.

Messina filed exceptions of no cause and no right of action and also answered raising certain objections to American Bank’s petition of intervention.

Following trial of the exceptions and the merits, the trial court overruled the exceptions and entered a judgment in favor of American Bank, upholding the chattel mortgage and recognizing it as to various items of equipment, particularly those described in the chattel mortgage by serial number; and the judgment recognized that the mortgage held by American Bank was superior to the judicial mortgage of the seizing creditor, Messina.

By an amended judgment, the trial court recognized that the other items seized by Messina were subject to the superior lien of Messina.

Messina has now appealed contending that there are certain defects in the proceedings and invalidations in the note and mortgage held by American Bank and that the trial court erred in recognizing American Bank’s mortgage as being superior to Messina’s on the serial number items. American Bank has answered the appeal contending that the trial court erred in recognizing Messina’s mortgage as being superior to American Bank’s on the remaining property seized. We note, at this juncture, that the bank’s answer is entirely without merit, the trial court having found that the items in question were not sufficiently identified as required by LSA-R.S. 9:5352. “What constitutes sufficiency of description is a matter to be determined in light of the circumstances of each individual case.” Young v. Squeeze Tools, Inc., 350 So.2d 967 (La.App. 2 Cir. 1977). We will not further address the answer to the appeal.

The primary issue for review is whether the trial court erred in upholding the validity of American Bank’s chattel mortgage and in holding that it primed Messina’s judicial mortgage as to certain pieces of equipment. Subsidiary issues concern arguments by counsel for Messina to the effect that either the proceedings or the note and mortgage are invalid.

DISCREPANCIES BETWEEN NOTE AND MORTGAGE

First Messina argues that there are certain discrepancies between the note and the mortgage and because of these, there was not proper notice to third parties of the mortgage. Recordation of the mortgage is notice to third parties and gives it superior rank to subsequent privileges. LSA-R.S. 9:5354. The mortgage instrument in question by its terms constitutes a chattel mortgage on the pieces of equipment which were properly identified therein. As to notice, third parties have no real concern with the note and for this reason there is serious question as to whether Messina has any standing to complain of the discrepancies. Be that as it may, we find, as did the trial court that the various discrepancies do not invalidate the mortgage.

The variation between the note providing payment in six months and the mortgage providing for payment on demand would not be a concern of Messina’s and in any event, since more than six months had elapsed, this discrepancy has become moot.

The fact that the instrument was entitled “collateral mortgage” has no effect when, by its terms, the instrument constitutes a chattel mortgage.

Messina complains also of the addition of the words “bearer or” to the note making it payable to the order of “bearer or American Bank & Trust Company” while the mortgage provided that the note was payable to the order of “bearer”. This addition to the note by the bank is of no consequence since the result of making the instrument payable to bearer could have been accomplished by simply endorsing the note in blank. In other words, the bank did something that it could have properly and lawfully done by endorsement. LSA-R.S. 10:3-204.

The variation of attorney’s fees between 25% in the note and 15% in the mortgage, likewise does not invalidate the mortgage but as held by the trial court, simply limits the mortgage holder to the lesser amount if attorney’s fees are collected.

AUTHENTIC ACT

Next, Messina attempts to attack the authentic nature of the act of mortgage by cross-examination of the Notary, Novella Taylor. The error specified is that the chattel mortgage, purporting to be in authentic form, was not signed in the presence of the Notary and two witnesses. Messina has completely failed to prove this contention. A review of Ms. Taylor’s testimony reflects that Messina did not establish any irregularities in the execution of the chattel mortgage. While the witness admitted freely that she could not remember all of the details of every instrument that she notarizes, her recollection was that all due formalities were observed in confecting this act. (TB. 8, 9). The law of Louisiana has always assigned a special dignity to the authentic act. See Templet v. Babbitt, 198 La. 810, 5 So.2d 13 (1941). On its face, the American Bank mortgage was executed as an authentic act and has not been proved to be otherwise. It is, therefore, presumed valid.

THE BACKHOE

Another contention is that the trial court incorrectly recognized the chattel mortgage as to a 1968 Case Backhoe. The backhoe is identified in the mortgage as “1 Case 580 TLB 1968 Serial # 8351856.” According to a witness presented by Messina, Kenneth F. Cason, the “TLB” letters are incorrect and should be “CK”, the latter not being part of the serial number but a letter designation for a backhoe. Although Cason testified that TLB is an incorrect designation for a backhoe, he could nevertheless identify the backhoe in question because of the serial number. The trial court correctly concluded that the serial number identified the item mortgaged and that the mortgage should be recognized as to the backhoe. Young v. Squeeze Tools, Inc., supra.

Since we find no merit to the various specifications of error assigned by Messina, we conclude that the trial court correctly recognized American Bank’s chattel mortgage and found it to be superior to Messi-na’s judicial mortgage as to the various pieces of equipment properly identified by serial number in the mortgage instrument. Therefore, the judgment is affirmed.

Costs of appeal are taxed against Messi-na.

AFFIRMED.

      . The prayer for payment was not granted by the trial court and is not urged on appeal.


author: FORET, Judge.

text:
    Curtis ELLIOTT et al., Plaintiffs-Appellants, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant-Appellee.
    No. 7031.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 1979.

      Wm. Henry Sanders, Jena, for plaintiffs-appellants.
    Marshall W. Wroten, Robert J. Jones, David K. Balfour, John W. King by John W. King, Baton Rouge, for defendant-ap-pellee.
    Before WATSON, FORET and CUTRER, JJ.
   FORET, Judge.

Plaintiffs-appellants filed this wrongful death and survival action seeking damages sustained by them for the injury and death of their daughter, Debbie Elliott. Made defendant in their original petition was the State of Louisiana, through the Department of Highways. Subsequently, plaintiffs filed a first supplemental and amending petition substituting as the party defendant, the State of Louisiana, through the Department of Transportation and Development (hereafter “DOTD”). Subsequently, plaintiffs filed another amending petition, erroneously styled “First Supplemental and Amending Petition” (actually it should have been styled “Second Supplemental and Amending Petition”), naming the State of Louisiana itself (no particular department) as a co-defendant, presumably based on its allegations that a State trooper and a deputy sheriff were also negligent in the causation of the accident.

The DOTD filed an answer denying all of the allegations of the plaintiffs, including those allegations contained in the second supplemental and amending petition. However, the State of Louisiana, individually, without regard to a particular department, has never filed any pleadings or otherwise made an appearance in this matter. Consequently, on July 17, 1978, a preliminary default was entered against the State of Louisiana. However, the record does not reveal that a judgment confirming the said default has ever been signed, and therefore that issue is not before us.

After presentation of plaintiffs’ case before the judge in a non-jury trial on July 17,1978, the trial judge granted a “directed verdict” in open court in favor of the Department of Transportation and Development, giving oral reasons therefor. However, a formal judgment was not signed until November 24, 1978, which judgment dismissed the demands of plaintiffs against the said DOTD. From this judgment, plaintiffs have appealed.

The issues before us on appeal are:

(1) Was the trial court factually correct in its determination that the DOTD was not liable to plaintiffs (Not having either actual or constructive knowledge of the allegedly hazardous road condition)?
(2) Assuming that the factual determination by the trial court was correct, was it procedurally correct for the court to grant a directed verdict in favor of DOTD?

The facts of the accident as set forth by the trial judge are as follows:

“Miss Debbie Elliott was driving a van north on Louisiana Highway 127 at about 8:30 [P.M.] on January 23, [1978] when she approached the Mill Creek bridge. There she encountered some mud on the highway, skidded out of control and hit the Mill Creek bridge, turning the van over on its side. When she encountered this mud near the bridge she was driving about 40 to 45 miles per hour, and she was normally a careful driver. She died as a result of injuries received in this accident, and her brother, Randy, was injured in the accident. He was a passenger in the van.
“On the 19th of January there was a 2½ inch snowfall. After that the weather moderated somewhat; it continued to be cold with light intermittent rains until the accident. After the accident a heavy rain occurred, falling between 9 or 9:30 on the 23rd and continuing until about 4:00 a. m. on the 24th. It had been considerably colder in the few days before the accident. On the date of the accident the temperature range ran from about the low 40’s to the 50’s. Sundown occurred at about 5:00 p. m., at least a couple of hours before this accident. So, the accident occurred during the hours of darkness.”

It was established that in the weeks prior to the accident, a logging operation was being conducted south of the bridge on the east side of Highway 127. On the morning of January 23, 1978, apparently a truck or trucks entered Highway 127 from the logging tract, dropping mud on the road surface. There is evidence that this mud on the highway was noticed by various persons including, plaintiff alleges, a La Salle Parish deputy sheriff. However, no report was made to any law enforcement agency nor was any notice given to the DOTD.

The State of Louisiana has the responsibility to maintain highways in such condition that they are reasonably safe for persons exercising reasonable prudence and caution under the prevailing circumstances, however, the law is clear that the Department is not the insurer of the safety of motorists using the public highways. Doucet v. State, Dept. of Highways, 309 So.2d 382 (La.App. 3 Cir. 1975).

Each factual situation must be considered individually to determine whether or not the road was “reasonably safe”. In the instant situation, the presence of a large amount of mud on the highway may be such an example of a road not “reasonably safe” for the motoring public.

However, for the State of Louisiana, through the DOTD to be liable, it must be shown that DOTD had notice, either actual or constructive, of the dangerous condition, and had sufficient opportunity to remedy same. Wilkinson v. American Ins. Co. of Newark, N. J., 311 So.2d 584 (La.App. 3 Cir. 1975).

The trial court found that the DOTD had no such notice and is therefore not liable to plaintiffs. We agree, finding such conclusion amply supported by the record.

At the close of plaintiffs’ case-in-chief, the DOTD moved for a “directed verdict” under La.Code of Civil Procedure, Article 1810 alleging that the plaintiffs had not set forth sufficient evidence to find the DOTD liable. After a recess to review the plaintiffs’ evidence, the court granted the motion.

Article 1810, as originally enacted, seemingly provided for a directed verdict only in jury trials . However, in 1978, the Louisiana legislature amended Article 1810 by adding Paragraph B, providing for a “[Mjotion to dismiss at close of plaintiff’s evidence” thus furnishing a procedural device analogous to a directed verdict, in a case tried before a court without a jury.

As our brothers of the Second Circuit noted, Article 1810 in its original 1977 form, while not specifically providing for a “directed verdict” in a judge trial, did not prohibit it either. Roncal v. Commercial Union Assurance Co., 367 So.2d 24 (La.App. 2 Cir. 1978). Thus, the 1978 edition may be treated as clarifying the available procedures in a judge trial. As the Second Circuit stated:

“It is somewhat ironic and inconceivable that a trial judge would be given the power in one instance and not in the other.” Roncal, supra, at page 27.

As noted, this section was added by the legislature in 1978; the effective date of the act was September 8, 1978. The present case was tried on July 17, 1978. Oral reasons for judgment were given in open court on that day. However, a formal judgment was not signed until November 24, 1978 (after the effective date of the amendment).

Generally, amendments to procedural rules are considered remedial and thus applied retroactively. Orleans Parish School Board v. Manson, 241 La. 1029, 132 So.2d 885 (1961); Blacher v. Matlack, Inc., 344 So.2d 444 (La.App. 1 Cir. 1977). In the present case since the formal judgment was not granted until after the effective date of the amendment, we hold that Article 1810, as amended, can be applied retroactively; the judgment is affirmed. Parenthetically, we note that the result would be the same if the DOTD had merely rested instead of moving for a directed verdict at the close of plaintiffs’ case.

The judgment of the trial court is affirmed at plaintiffs’ costs.

AFFIRMED.

      . A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. Acts 1977, No. 699.

      . Acts 1978, # 156, effective September 8, 1978.

      .B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence. Added by Acts 1977, No. 699, § 1. Amended by Acts 1978, No. 156, § 1.


text:
    Wanda Lee PETTY, Plaintiff-Appellee, v. Joseph Millard PETTY, Defendant-Appellant.
    No. 7032.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 1979.

      Reesby & Townsend by Jeff E. Townsend, Jr., Lake Charles, for defendant-appellant.
    Kimball, McLeod & Dow by Robert L. Dow, Lake Charles, for plaintiff-appellee.
    Before WATSON, FORET and CUTRER, JJ.
   WATSON, Judge.

The only issue presented is whether the trial court abused its discretion in awarding $300 per month as permanent alimony to Wanda Lee Petty, ex-wife of Joseph Millard Petty.

The facts found by the trial court are quite simple:

The former husband has adequate ability to pay the amount awarded. The former wife has only sporadic and temporary employment as a “Kelly Girl” and is in poor health. However, she has certain assets resulting from the division of the community property. While valued at approximately $80,000, these assets are mostly real estate and half the value is the community home where Mrs. Petty lives. The other assets consist of an undivided interest in undeveloped property and an undivided interest in certain subdivision lots plus a small savings account.

The only assets from which Mrs. Petty could raise funds to support herself are the undivided interests in real property. The trial court did not err in holding that it would be unreasonable to require that she sell these, probably at much less than fair value, to support herself. Rather, we believe that the trial court took her capital assets and the possibility of a slow liquidation of these into consideration in fixing the modest alimony awarded.

The trial court also found that Mrs. Petty’s monthly living expenses were in excess of $1,000, and found that the savings would be quickly exhausted by living expenses.

We find no error or abuse of discretion in the award of $300 per month as permanent alimony. The judgment is affirmed.

Costs on appeal are taxed against Joseph Millard Petty.

AFFIRMED.


author: CUTRER, Judge.

text:
    Thomas VINCENT, Plaintiff-Appellant, v. PENROD DRILLING COMPANY
      , Defendant-Appellee.
    No. 7048.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 1979.

      Wm. Henry Sanders, Jena, for plaintiff-appellant.
    Hebert, Abbott & Horack, Lawrence E. Abbott and Daniel A. Webb, New Orleans, for defendant-appellee.
    Before WATSON, FORET and CUTRER, Judges.

      . The title to this suit indicates only Penrod Drilling Company as the defendant. By amended petition, however, the remaining defendants, John Whitehead, Granite State Insurance Company and Stonewall Insurance Company, were added.

   CUTRER, Judge.

Thomas Vincent filed this action for damages under the Jones Act, 46 U.S.C.A. § 688, and the general maritime law in the Parish of LaSalle as a result of injuries he allegedly sustained on May 22, 1978 while working on a drilling rig located in the Gulf of Mexico in United States territorial waters. The defendants are Vincent’s employer, Penrod Drilling Company (Penrod), John Whitehead, Granite State Insurance Company (Granite State) and Stonewall Insurance Company (Stonewall), insurers of Penrod.

In response to plaintiff’s demands, the defendants filed various exceptions. From judgments sustaining defendant’s exceptions and dismissing the suit, plaintiff appeals. We affirm.

EXCEPTION OF IMPROPER VENUE FILED BY PENROD

Penrod’s exception of improper venue was sustained by the trial court without written reasons. The plaintiff contends the ruling of the trial court was error for either or all of the following reasons:

(1) By filing answers to plaintiff’s interrogatories, plaintiff contends that Pen-rod made a general appearance, thereby waiving its exception to venue;
(2) Plaintiff contends that Penrod is a foreign partnership and conducted business in LaSalle Parish and is thus amenable to suit therein under the provisions of LSA-C.C.P. Articles 42 or 77;
(3) Plaintiff further contends that John Whitehead, a resident of LaSalle Parish, is a joint and solidary obligor with Penrod, thus LaSalle Parish is the proper venue for a suit against Penrod.

We will discuss these contentions in the order listed.

(1)

Plaintiff’s contention, that Penrod made a general appearance by answering plaintiff’s interrogatories, is without merit. Plaintiff relies on LSA-C.C.P. Art. 7 in support of his position.

The same issue was presented to this court in the case of Stelly v. Quick Manufacturing, Inc., 228 So.2d 548 (La.App. 3rd Cir. 1969), where the court held as follows:

“[2] Article 7 of the Louisiana Code of Civil Procedure provides, in part:
‘Except as otherwise provided in this article, a party makes a general appearance which subjects him to the jurisdiction of the court and impliedly waives all objections thereto when, either personally or through counsel, he seeks therein any’ relief other than:
‡ * * * * *
(2) Extension of time within which to plead; * * *
(5) Dismissal of the action on the ground that the court has no jurisdiction over the defendant. * * *
‘When a defendant files a declinatory exception which includes a prayer for the dismissal of the action on the ground that the court has no jurisdiction over him, the pleading of other objections therein, the filing of the dilatory exception therewith, or the filing of the peremptory exception or an answer therewith when required by law, does not constitute a general appearance.’
“Although this Article does not specifically list the filing of answers to interrogatories as pleadings which may be filed without subjecting the answering party to the jurisdiction of the court, we believe that a party who files answers to interrogatories cannot be said to be seeking ‘relief,’ as that term is used in Article 7.” (Emphasis added)

The filing of answers to the plaintiff’s interrogatories cannot be said to be seeking “relief” as the term is used in Article 7.

(2)

Plaintiff’s contention, that LaSalle Parish is the proper venue for the suit on the basis that Penrod, a foreign partnership, did business in that parish, is without merit. First, the unrefuted affidavit by Frank K. Newlin, Operations Manager of Penrod, states that Penrod conducted no business in LaSalle Parish, nor did Penrod have a business office in that parish. Secondly, LSA-C.C.P. Art. 42(6) and Art. 77 designate the proper venue for suits against a foreign partnership. Article 42(6) authorizes such suit in the parish of the designated agent for the service of process. Article 77 authorizes such suit in the parish where a business office or establishment of the partnership is located. The service instructions on plaintiff’s petition request service on Penrod in two parishes, Terrebonne and Lafayette. The record contains two services of process. One service shows that Penrod was served in Lafayette Parish and the other shows service on Penrod, through Don Martin, in Terrebonne Parish. LaSalle Parish would be improper venue for suit against Penrod under such circumstances.

(3)

Plaintiff also contends that the trial court erred in dismissing Penrod because Penrod is jointly or solidarily liable with defendant John Whitehead. Plaintiff, in his brief, alleges that Whitehead was an employee of Penrod and contends that since Whitehead is a resident of LaSalle Parish, venue is proper for both Whitehead and Penrod as they were solidary obligors under LSA-C.C.P. Art. 73. The trial court, as hereinafter set forth, properly dismissed Whitehead on an exception of no cause of action. Since Whitehead was dismissed before trial on the merits, Penrod could properly object to venue as no basis for venue on this ground remained. Verdun v. Plaisance, 339 So.2d 533 (La.App. 4th Cir. 1976).

We conclude that the trial court properly sustained the exception of improper venue filed by Penrod.

EXCEPTION OF NO CAUSE OF ACTION FILED BY JOHN WHITEHEAD

Plaintiff contends that the trial court erred in sustaining John Whitehead’s exception of no cause of action.

Plaintiff asserts a claim under the Jones Act, 46 U.S.C.A. § 688, for negligence as well as claims under the general maritime law for unseaworthiness and maintenance and cure. Such claims cannot be made against John Whitehead, an alleged co-employee.

“A suit under the Jones Act can be brought against the seaman’s employer only, for the right of action given to the seaman to recover damages for injuries sustained in the course of his employment . accrues only where an employer and employee relationship exists.” M. Norris, Law of the Sea Vol. 2 § 670 (3rd Ed.)

Likewise, plaintiff cannot maintain a claim for damages against Whitehead for the vessel’s unseaworthiness. The obligation to furnish a seaworthy vessel to the crew members is owed by the owner or operator of the vessel. M. Norris, Law of the Sea Vol. 2 § 613 (3rd Ed.) This obligation cannot be extended to a co-employee. Plaintiff’s brief contends that Whitehead was a co-employee. There is no contention that he was the owner or operator of the vessel.

As to maintenance and cure, M. Norris, Law of the Sea Vol. 2 § 545 (3rd Ed.) states:

“The ancient duty of the vessel and shipowner to provide the sick and injured seaman with maintenance and cure arises from the contract of employment and the peculiar relationship existing between the seaman and his vessel. It is an obligation imposed by the general maritime law on the shipowner and the vessel.”

A claim for maintenance and cure cannot be made against a co-employee.

In the case of West v. Marine Resources Commission, 330 F.Supp. 966 (E.D.Va.1970), plaintiff asserted claims under the Jones Act, under the general maritime law for unseaworthiness and for maintenance and cure. The claims were filed against individual employees of the Commission. In dismissing the claims against the co-employees, the court held as follows:

“The Jones Act gives a seaman a cause of action against his employer for an injury caused by the employer’s negligence; however, none of the individual defendants was West’s employer. For the same reason, none of the individuals owed any duty to furnish West with a seaworthy vessel or to provide him with maintenance and cure. The individual defendants, like West, were merely employees of the Commission. Under these circumstances, West’s claim against the individual defendants must be dismissed.”

The trial court correctly sustained the exception of no cause of action filed by Whitehead as suit may not be maintained against him, as a co-employee, under the Jones Act or general maritime law.

PEREMPTORY EXCEPTIONS FILED BY GRANITE STATE AND STONEWALL

Among other exceptions filed by the insurers of Penrod was a peremptory exception of no cause of action. Granite State and Stonewall filed this exception on the ground that the accident occurred outside of Louisiana and the policies insuring Pen-rod were issued and delivered outside Louisiana.

The court is not bound by the label placed on an exception as the essential nature of the exception remains unaltered. Parks v. Winnfield Life Insurance Company, 336 So.2d 1021 (La.App. 3rd Cir. 1976). The proper label for the exception urged by Granite State and Stonewall is an exception of no right of action and the court will treat it as such.

An exception, on the ground that the Direct Action Statute, LSA-R.S. 22:655, is inapplicable, has consistently been referred to as an exception of no right of action. Esteve v. Allstate Ins. Co., 343 So.2d 353 (La.App. 4th Cir. 1977), aff’d 351 So.2d 117 (La.1977); Morse v. Hartford Casualty Insurance Company, 301 So.2d 741 (La.App. 3rd Cir. 1974). See also: Webb v. Zurich Insurance Company, 251 La. 558, 205 So.2d 398 (La.1968) and Kirchman v. Mikula, 258 So.2d 701 (La.App. 3rd Cir. 1972). The Direct Action Statute refers to a “right” of direct action.

To invoke the Louisiana Direct Action Statute in a maritime action for injuries sustained on the high seas, the insurance policy in question must have been issued in or delivered in Louisiana. Trahan v. Gulf Crews, Inc., 246 So.2d 280 (La.App. 3rd Cir. 1971), rev’d on other grounds, 260 La. 29, 255 So.2d 63 (1971). See also, Koesler v. Harvey Applicators, Inc., 416 F.Supp. 872 (E.D.La.1976) and Sassoni v. Savoie, 327 F.Supp. 474 (E.D.La.1971). This is consistent with the rule that “the right of direct action against a liability insurer in a Louisiana Court is expressly conferred by statute, but only under certain conditions: (1) the accident occurred in Louisiana, or (2) the policy was issued or delivered in Louisiana.” Esteve v. Allstate Ins. Co., supra; Webb v. Zurich Insurance Company, supra; and Kirchman v. Mikula, supra.

There is no evidence in the record concerning where the policies insuring Penrod were issued or delivered. However, there is a presumption that the judgment of the trial court is supported by sufficient and competent evidence when there is a factual issue involved and the record contains neither a transcript nor a narrative of facts. Iles v. White, 345 So.2d 1304 (La.App. 3rd Cir. 1977). In this case, the trial court having stated in each of the two judgments that the court considered “the pleadings, evidence and argument of counsel,” it must be presumed that the court heard sufficient evidence to support the judgments rendered. Harvey v. McMinn, 238 So.2d 772 (La.App. 1st Cir. 1970).

We thus conclude that the exceptions discussed herein were properly sustained by the trial court. It is unnecessary for us to discuss other exceptions filed by defendants.

For these reasons, the judgments of the trial court dismissing plaintiffs suit are affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.

      . LSA-C.C.P. Art. 42(6) states:
      “A nonresident, other than a foreign corporation or a foreign or alien insurer, who has appointed an agent for the service of process in the manner provided by law, shall be brought in the parish of the designated post office address of an agent for the service of process; . .

      . LSA-C.C.P. Art. 77 states:
      “An action against a person having a business office or establishment in a parish other than that where he may be sued under Article 42, on a matter over which this office or establishment had supervision, may be brought in the parish where this office or establishment is located.”

      .LSA-C.C.P. Art. 73 provides:
      “An action against joint or solidary obli-gors may be brought in any parish of proper venue, under Article 42 as to any obligor who is made a defendant.
      “If the action against this defendant is compromised prior to judgment, or dismissed after a trial on the merits, the venue shall remain proper as to the other defendants, unless the joinder was made for the sole purpose of establishing venue as to the other defendants.”

      . One judgment sustained the exceptions filed by Penrod, Granite State and Stonewall, and dismissed the suit as to those defendants. A separate judgment sustained the exception filed by John Whitehead, and dismissed the suit as to this defendant.


text:
    NATCHITOCHES MOTOR COMPANY, LTD., Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY et al., Defendants-Appellants.
    No. 7052.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 1979.

      Watson, Murchison, Crews, Arthur & Cockern by William P. Crews, Jr., Natchi-toches, for defendants-appellants.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for plaintiff-appel-lee.
    Before WATSON, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is a tort action instituted by the Natchitoches Motor Company, Ltd. seeking to recover $1,690.39 in property damages to plaintiff’s 1977 Ford LTD. The damage resulted from a collision which occurred between plaintiff’s vehicle, driven by Charles R. Whitehead III, and a Louisiana State Police car driven by State Police Trooper, Sammie L. Kitchen. Named as defendants in this suit were Trooper Kitchen and Travelers Insurance Company, the liability insurer for the Louisiana Department of Public Safety. The amount of the property damages was stipulated. From a judgment awarding recovery to the plaintiff, defendants appeal. We affirm.

The sole issue on appeal is whether Charles Whitehead III, the operator of plaintiff’s vehicle, was contributorily negligent.

The collision in question occurred on June 3, 1978 at approximately 5:20 P.M. The vehicle driven by Charles Whitehead was proceeding in the eastbound lane of Texas Street immediately to the east of the intersection of Texas Street and Dorothy Street in the City of Natchitoches, Louisiana. At this location, Texas Street is a two-lane, hard surfaced highway generally congested with heavy traffic. Throughout this area, Texas Street is clearly marked with a double yellow centerline indicating a “No Passing” zone. The speed limit is posted at 35 miles per hour.

As Whitehead proceeded along Texas Street, he decided to make a left turn into the parking lot of a restaurant. At this point, Whitehead was followed by two vehicles. A pickup truck was traveling immediately behind Whitehead’s vehicle and Trooper Kitchen’s vehicle was approaching the pickup. Trooper Kitchen was in the process of responding to an emergency call and had both his visual and audible warnings activated.

Trooper Kitchen testified that he was traveling along Texas Street at 35 to 45 miles per hour. He came up behind the pickup truck and the Whitehead vehicle about one block .west of the intersection of Texas Street and Dorothy Street. After crossing this intersection, Kitchen decided to pass both vehicles as neither of them showed signs of pulling to their right to allow him to pass. According to Kitchen’s testimony, as he pulled left, the pickup truck began to pull right toward the shoulder of the road and Whitehead began turning left. When Kitchen saw Whitehead in the left lane, he applied his brakes and skidded 63 feet before colliding with the left rear corner of plaintiff’s vehicle. Kitchen stated that he never observed any turn signal on plaintiff’s car, but it should be noted that there was a pickup truck between him and plaintiff’s car as he began his passing maneuver.

Charles Whitehead testified that between three and four car lengths ahead of his anticipated turn, he activated his left turn signal. According to Whitehead, as he slowed, he looked into his inside rearview mirror and saw only the pickup truck behind him. He saw no oncoming traffic on the left (westbound) lane. Whitehead came to a stop and then began his turn. As to whether he looked in his rearview mirror while in the stopped position, Whitehead stated: “I was looking in the rearview mirror all of the time I was stopped. When I was stopped it wasn’t like I was driving and I stopped and looked up. I was looking in the rearview mirror most of the time.” Whitehead proceeded to turn left and had almost cleared the left lane when the impact occurred.

Whitehead stated that he had not heard Kitchen’s siren nor seen the trooper’s flashing red lights until a moment before the impact. The windows of Whitehead’s vehicle were up and the air conditioning was turned on. The only traffic he saw before the accident was the pickup truck immediately behind him. Whitehead stated that he did not use the side rearview mirror as it was broken at the time.

The trial court, in a written opinion, found that the driver of plaintiff’s vehicle did not see or hear Kitchen until immediately before impact; that the plaintiff’s vehicle had practically cleared the left lane when Kitchen collided with the left rear corner of plaintiff’s car; and that the sole proximate cause of the accident was the fault of Trooper Kitchen. The court found that Kitchen was negligent “in attempting to pass two vehicles in a ‘no passing’ zone, congested with heavy traffic, when he could not tell what the lead vehicle (plaintiff’s car) was going to do.”

Defendant’s . argument that Whitehead was contributorily negligent is based on. (1) a violation by Whitehead of his duty as a left-turning motorist to make proper observation that the turn can be made without endangering oncoming or overtaking vehicles, (2) Whitehead’s failure to respond properly to the trooper’s warning lights and siren, and (3) the failure by plaintiff to have a properly maintained side rearview mirror.

It is well settled that a left-turn movement is generally characterized as a dangerous operation, not to be undertaken until the motorist ascertains that it can be made in safety. LSA-R.S. 32:104. This principle is so well established that citation of authorities would be superfluous.

There is no presumption, however, that the driver of a left turning vehicle is guilty of negligence. Both a left turning and a passing motorist are charged with an exceptional duty of care. Whether there has been a breach of duty on the part of either must be proved. In the instant case, Trooper Kitchen’s negligence was clearly proved by plaintiff and is not at issue. The defendants bear the burden of proving Whitehead’s contributory negligence.

In judging whether a left turn can be made in safety, the motorist has the right to assume that a following motorist will observe all the duties imposed upon him by law and common sense. Thus, he may assume that the following motorist will proceed within the speed limit and will not cross over a yellow line in his traffic lane marking a “no passing” zone and, moreover, will keep a proper lookout. Breland v. American Insurance Company, 163 So.2d 583 (La.App. 2nd Cir. 1964), writs refused 246 La. 379, 164 So.2d 362 (1964).

In executing the left turn, Whitehead complied with the requirements of the law. He made close observation of oncoming traffic, noting a lack of same; checked the location and speed of the only vehicle seen following him; gave a proper left turn signal and ascertained that such signal was being heeded by the driver of the pickup truck, the only vehicle in view to his rear. It is only then that Whitehead began to carefully negotiate the left turn into the parking lot of the eating establishment.

It is argued that Whitehead’s failure to respond to the emergency vehicle signals constitutes negligence. The trial court held that Whitehead did not see or hear the police unit until immediately before the impact. Whitehead testified that his windows were up and the air conditioning was turned on. The trial judge accepted this explanation and the record fully supports such conclusion of fact. The duty of a motorist to yield the right of way to emergency vehicles under LSA-R.S. 32:125 only arises when the motorist observes or hears, or under the circumstances should have observed or heard, the audible and/or visual warnings of the emergency vehicle. To bar plaintiff’s recovery, defendants must establish that Whitehead was aware or should have been aware of Trooper Kitchen’s approach. The defendants have failed in this burden of proof.

The record strongly indicates that when Trooper Kitchen suddenly pulled out to pass the pickup truck and the Whitehead vehicle, that Whitehead had begun to execute his left turn. Randall Chambers, a witness called by defendants, testified that, simultaneously with Trooper Kitchen pulling into the left lane, he saw smoke coming from the tires of Kitchen’s vehicle. Also, the location of the skid marks and the damaged portion of each vehicle reflects that the front part of the Whitehead vehicle had cleared the highway at the time the police unit struck the left rear corner of the Whitehead vehicle. In view of this evidence, we conclude that when Whitehead began his left turn, Trooper Kitchen’s vehicle was not in such a physical location that it could have been seen by Whitehead either through his inside mirror or the outside rearview mirror even had it been operable.

Under the facts established in the record and as found by the trial court, with which we are in accord, we find no basis for disagreement with the trial court’s conclusion that the plaintiff’s driver was free from negligence and that the negligence of Trooper Kitchen constituted the sole, proximate cause of the accident.

For these reasons the judgment of the trial court is affirmed at defendants-appellants’ costs.

AFFIRMED.

      . LSA-R.S. 32:125 states that:
      “Upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals, or of a police vehicle properly and lawfully making use of an audible signal only, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right hand edge or curb of the highway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.”


text:
    Homer L. CLARK, Plaintiff-Appellee, v. Barbara A. Theaux CLARK, Defendant-Appellant.
    No. 7065.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 1979.

      Robert L. Comeaux, Lafayette, for defendant-appellant.
    Homer L. Clark, in pro. per.
    Before WATSON, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is an appeal from a default judgment of separation.

Homer L. Clark sued hifc wife, Barbara A. Theaux Clark, for separation on the ground of mental cruelty. In addition to the allegations of cruelty, the plaintiff alleged that defendant was mentally ill and had been committed to the Central Louisiana State Hospital at Pineville, Louisiana, on more than one occasion, the last commitment being about five weeks before suit was filed. The sheriff’s return on the citation shows that the defendant was served with process at the Central Louisiana State Hospital on December 26, 1978.

On January 22, 1979, a preliminary default was entered. On January 25, 1979, the default was confirmed and a judgment of legal separation was rendered. The defendant appealed.

The issue presented by this appeal is whether the trial court erred by proceeding to judgment against the defendant without the appointment of an attorney as provided in LSA-C.C.P. Article 733.

The petition of the plaintiff, in addition to allegations of cruelty, contained the following allegations:

“6.
“Defendant stays in a mental state of unreality and shows constant symptoms of paranoia. Specifically, defendant has been afraid to eat or drink things because she thinks people are trying to poison her, and she often believes that people are outside their trailer trying to kill her.
“7.
“Defendant has on two (2) occasions been committed to Central State Hospital for mental treatment, having been committed in November of 1977 by her family for a period of three and one-half (3V2) months and again on November 9, 1978, by petitioner for a period of approximately three (3) weeks.
“8.
“Petitioner has been unwilling to accept treatment on a voluntary basis and has shown little signs of improvement.”

These allegations effectively allege that defendant was mentally incompetent. No attorney was appointed by the court to represent the defendant. LSA-C.C.P. Article 733 provides:

“A mental incompetent has no procedural capacity to be sued.
“Except as otherwise provided in Articles 732, 4431 and 4554, the curator appointed by a court of this state is the proper defendant in an action to enforce an obligation against a mental incompetent or an interdict. If an incompetent has no curator, but is interdicted, or committed to or confined in a mental institution, the action shall be brought against him, but the court shall appoint an attorney at law to represent him.”

As we examine the unusual circumstances of this suit, i. e., (1) the defendant’s alleged continuing mental state of unreality or paranoia; (2) alleged commitments to the state institution for the mentally ill; and (3) service on the defendant at Central Louisiana State Hospital, we conclude that an attorney should have been appointed to represent defendant under the provisions of Article 733.

Any judgment rendered against a person who is mentally incompetent is an absolute nullity. LSA-C.C.P. Article 2002. Mental incompetency is a question of fact to be ascertained by evidence. Neff v. Ford Motor Credit Co., 347 So.2d 1228 (La.App.lst Cir. 1977). Article 733 provides a procedure for the determination of mental competency and such procedure must be utilized by the trial court to make this determination when faced with the pleadings and proceedings as contained in this record. We conclude that the default judgment was improperly rendered and the suit must be reversed and remanded.

Pending this appeal, the wife also filed an action of nullity in the trial court seeking to nullify the default judgment. The husband failed to file an answer in that action. The trial court, however, refused to order a preliminary default entered therein on the ground that the appeal from the original judgment divested the trial court of jurisdiction and barred any further action by the trial court in the case. The wife filed a writ of mandamus with this court asking this court to compel the trial court to sign the preliminary default order. This writ was referred to the merits of this appeal.

Having come to the conclusion that the judgment appealed from must be reversed, set aside and the suit remanded, the writ becomes moot and discussion of same is unnecessary.

For the reasons assigned, the judgment of the trial court is reversed and set aside. The case is remanded for trial consistent with the views expressed herein. Costs of this appeal to be paid by plaintiff-appellee.

REVERSED AND REMANDED.

      . Central Louisiana State Hospital at Pineville, Louisiana is designated by LSA-R.S. 28:21 as an institution for the mentally ill and inebriate.

      . Art. 2002. Annulment for vices of form; time for action.
      “A final judgment shall be annulled if it is rendered;
      (1) Against an incompetent person not represented as required by law;”


text:
    WILLIAM T. BURTON INDUSTRIES, INC., Plaintiff-Appellant, v. Elijah MONK et al., Defendants-Appellees.
    No. 7076.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 1979.
    Camp, Carmouche, Palmer, Barsh & Hunter, Karl E. Boellert, Lake Charles, for plaintiff-appellant.
    Smith, Ford & Clark, John C. Ford, Lees-ville, for defendants-appellees.
    Before WATSON, FORET and CUTRER, JJ.
   WATSON, Judge.

Plaintiff, William T. Burton Industries, Ine., asked to be recognized as owner of eighty acres in Vernon Parish, Louisiana described as follows:

Southeast Quarter of the Northwest Quarter (SE ¼ of NW ¼) and the Southwest Quarter of the Northeast Quarter (SW ¼ of NE Vi), Section 25, Township 3 North, Range 6 West.

The suit was dismissed prior to trial as to all defendants except Matt E. Smith. Judgment was rendered recognizing Smith’s ownership of approximately six of the eighty acres. Burton has appealed.

It is contended that the trial court erred: in supplying the plea of acquisitive prescription; in ordering a partial new trial on the issue of tacking; in failing to recognize Burton’s title to the remainder of the land in dispute; in holding that Smith carried the burden of proving adverse possession; in allowing Smith to tack the possession of his predecessor; in finding adverse possession of a pie shaped tract comprising part of the disputed acreage, which lacked visible boundaries; and in assessing all costs against plaintiff.

PRESCRIPTION

Smith’s answer and reconventional demand pleads acquisitive prescription of thirty years. (TR. 28). There is no merit to the contention that the plea of prescription was supplied by the trial court.

NEW TRIAL

Judge Stuart S. Kay tried the case but died while it was under advisement. His successor, Judge Broyles, had the testimony transcribed and ordered, on his own motion, that the matter be reopened for “a new trial” (TR. 39), evidence and reargument on the question of tacking possession. It is contended that the order of new trial was not timely and constitutes an abuse of discretion by the trial court. Judgment had not been rendered and what was ordered was not, strictly speaking, a new trial. The order was an interlocutory one, one contemplated by LSA-C.C.P. art. 1914 when a case is under advisement. There was no error in this order, which served the interests of justice, and was within the trial court’s discretion. LSA-C.C.P. art. 1631; Nalty v. Nalty, 222 La. 911, 64 So.2d 216 (1953). The seven day delay provided in LSA-C.C.P. art. 1974 only applies when a judgment has been signed.

TITLE TO THE REMAINDER

Appellee Smith does not dispute Burton’s right to be recognized as owner of the remainder of the eighty acres. The evidence establishes plaintiff’s ownership of this property. The reasons for judgment indicate that this was, in fact, the intention of the trial court. The judgment will be amended accordingly.

ADVERSE POSSESSION AND TACKING

Charles C. Wise did a survey of the property claimed by defendant Matt E. Smith on January 2,1975 (D-l). It was stipulated that Wise is an expert land surveyor. Defendant Smith has the disputed property under fence. The survey identifies it as Tract # 1. It is located in both the Southeast Quarter of the Northwest Quarter (SE Vi of NW ¼) and the Southwest Quarter of the Northeast Quarter (SW ¼ of NE ¼) of Section 25, Township 3 North, Range 6 West.

Matt Smith testified that the fence is one which existed when he moved on the property in 1949 after its purchase from Richard Smith. Matt Smitt added net wire at the bottom of the barbed wire to keep out hogs. Matt Smith built a barn and shed on the disputed acreage. Part of the property has been used as pasture and part as a garden and meadow. Richard Smith and Matt Smith are unrelated. When the latter purchased the property, he did not know where the property line was located and possessed up to the fence line.

Dovie Smith, widow of Richard Smith, testified that she and her husband moved on the property in August of 1934 and fenced it immediately afterward. The outside fence lines are still located where they were built in the winter of 1934, 1935. The pasture where Matt Smith now keeps cows and his mule was also used by the Richard Smiths for pasture. Another section of the property was farmed and used as a garden. The house constructed by the Richard Smiths is now occupied by Matt Smith. The testimony of Matt Smith and Mrs. Richard Smith was fully corroborated by that of W. F. (Bill) Poe, Elijah Monk and Ervin Monk.

It was stipulated that Matt Smith has title to property adjacent to and immediately north of the property in dispute described as Tract # 2 on the Wise survey and located in the Northwest Quarter of the Northeast Quarter (NW ¼ of NE ¼) of Section 25. In evidence is a 1949 deed from Richard Smith to Matt Smith of property described as the East Half of the Northeast Quarter of the Northwest Quarter (E of NE ¼ of NW ¼) of Section 25. This property is located west of Tract # 2 and is also contiguous to that in dispute.

Also in evidence is the deed by which Richard Smith and his wife, Dovie Welch, acquired the Northeast Quarter of the Northwest Quarter (NE ¼ of NW ¾) of Section 25 from John Monk on August 27, 1934. (D-3). When Richard Smith fenced this land in 1934, he also cleared and fenced the adjoining acreage on the south and used and possessed it as his own, building a barn and putting in a pasture and garden. After Matt Smith purchased the tract from Richard Smith in 1949, he also occupied the same fenced property to the south. Thus, defendant and his predecessor in title have had actual possession for over thirty years of land extending beyond that described in their title and embraced within visible bounds. Sessum v. Hemperley, 233 La. 444, 96 So.2d 832 (1957); William T. Burton Industries, Inc. v. Wellman, 343 So.2d 996 (La., 1977); Nelken v. Aldredge, 128 So.2d 843 (La.App. 3 Cir. 1961); Martin Timber Company v. Taylor, 187 So.2d 196 (La.App. 3 Cir. 1966); LSA-C.C. art. 852. Since the tract in dispute had been possessed within visible bounds for over thirty years, Matt Smith acquired it by acquisitive prescription of thirty years. LSA-C.C. art. 3499.

THE PIE SHAPED AREA

The survey by Wise shows a small pie shaped cutout on the south which is not under fence and not included in the description of Tract # 1. This pie shaped area weis enclosed within the outside perimeter of Richard Smith’s fence until 1949. At that time, Matt Smith created the incursion as a lane to move his cows. There is no evidence that this cutout was possessed within visible boundaries after 1949. The trial court erred in holding that Matt Smith acquired this portion of land by acquisitive prescription of thirty years. The judgment will be amended accordingly.

COURT COSTS:

Since the primary dispute between the parties concerned the 5.79 acres identified as Tract # 1 on the Wise survey and defendant Smith owns the disputed acreage, the trial court was within its discretion in assessing all costs to plaintiff. LSA-C. C.P. art. 1920. Costs of the appeal will also be assessed to plaintiff-appellant.

For the foregoing reasons,

IT IS ORDERED, ADJUDGED AND DECREED that plaintiff, William T. Burton Industries, Inc., be recognized as owner of the following described property in Vernon Parish, Louisiana:

Southeast Quarter of the Northwest Quarter (SE ¼ of NW ¼) and the Southwest Quarter of the Northeast Quarter (SW Vi of NE ¼), Section 25, Township 3 North, Range 6 West, less and except 5.79 acres owned by Matt E. Smith.

IT IS ORDERED, ADJUDGED AND DECREED that defendant, Matt E. Smith, be recognized as owner of the following described property in Vernon Parish, Louisiana:

A part of the Southeast ¼ of the Northwest ¼ and the Southwest Vi of the Northeast ¼ of Section 25, Township 3 North, Range 6 West, Vernon Parish, La. described as follows: Begin at the Northeast corner of said SE Vi of NW ¼ —Thence S89°40'W along the North line of said SE Vi of NW Vi — 675.0 feet to its intersection with existing fence line; Thence along said existing fence line— S100 50'W — 356.5 feet; N81 ° 13'E-460.8 feet; N3°27'W — 111.4 feet; N76°43'E— .51.1 feet; S38°23'E — 130.2 feet; N81°36'E — 140.8 feet; N72°12'E — 264.8 feet; N38°28'E — 178.9 feet; and N7°52'W — 23.4 feet to the North line of said SW Vi of NE ¼; Thence S89°40'W along said North line — 337.0 feet to Point of Beginning containing 5.79 acres.

All costs are assessed to plaintiff-appellant, William T. Burton Industries, Inc.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      . LSA-C.C.P. art. 1914:
      “When a case has been taken under advisement by the court for the purpose of deciding whether an interlocutory order or judgment should be rendered, the clerk shall make an entry in the minutes of the court of any such interlocutory order or judgment rendered thereafter.
      If a written request for notice of the rendition of the interlocutory order or judgment in such a case has been filed, the clerk shall mail notice thereof to the party requesting it; and the latter shall have ten days from the date of the mailing of the notice to take any action or file any pleadings he deems necessary, except as provided in the next paragraph.
      If the interlocutory order or judgment is one refusing to grant a new trial, the delay for appealing commences to run only from the date of the mailing of such notice, as provided in Articles 2087 and 2123.
      The provisions of this article do not apply to an interlocutory injunctive order or judgment.”

      . LSA-C.C.P. art. 1631:
      “The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.
      On its own motion the court may, and on request of a party the court shall, order that the witnesses, other than parties, be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interest of justice, the court may exempt any witness from its order.”

      . LSA-C.C.P. art. 1974:
      “The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
      When notice of the judgment is required under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.”

      . LSA-C.C. art. 852:
      “Whether the titles, exhibited by the parties, whose lands are to be limited, consist of primitive concessions or other acts by which property may be transferred, if it be proved that the person whose title is of the latest date, or those under whom he holds, have enjoyed, in good or bad faith, uninterrupted possession during thirty years, of any quantity of land beyond that mentioned in his title, he will be permitted to retain it, and his neighbor, though he have a more ancient title, will only have a right to the excess; for if one can not prescribe against his own title, he can prescribe beyond his title or for more than it calls for, provided it be by thirty years possession.”

      . LSA-C.C. art. 3499:
      “The ownership of immovables is prescribed for by thirty years without any need of title or possession in good faith.”

      . LSA-C.C.P. art. 1920:
      “Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
      Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”


text:
    ROBERT J. NAQUIN & ASSOCIATES, INC., Plaintiff-Appellant, v. PORTAGE PLANTATION, INC., Defendant-Appellee.
    No. 7082.
    Court of Appeal of Louisiana, Third Circuit.
    June 20, 1979.
    Edward J. Milligan, Jr., Lafayette, for plaintiff-appellant.
    Guillory, McGee & Mayeux, Robert K. Guillory, Eunice, for defendant-appellee.
    Before WATSON, FORET and CUTRER, JJ.
   CUTRER, Judge.

Robert J. Naquin & Associates, Inc. (Na-quin) brought this suit to collect a real estate commission allegedly owed by Portage Plantation, Inc. (Portage). The trial court granted defendant’s motion for summary judgment dismissing plaintiff’s suit. Plaintiff appeals. We reverse.

The written commission contract reflected the following: On February 11, 1977, the defendant, Portage, represented by its president, Robert Guillory, entered into a written exclusive listing contract with Naquin, represented by its president, Robert J. Naquin, for the sale, exchange or option of a tract of land containing 1,297 acres (two sections) in St. Landry Parish. The contract called for a sales price of $800 per acre. The contract also called for a commission of 2½ percent of the gross amount of any transaction, or $24,000, whichever was less, to be paid to Naquin upon any agreement for or transfer of title during the term of the contract or any extension thereof. The contract further provided that in the event the property was withdrawn by Portage without Naquin’s consent or voluntarily made unmarketable by Portage during the term or extension of the contract, the commission would be due. Any offers to purchase to Portage were to be signed by offeror or offeror’s agent before submission to Portage. The contract was to expire at midnight, March 12, 1977.

The plaintiff’s petition reflects that buyers were procured for a portion of the property within the contract period and defendant executed a sale of this portion on March 16, 1977. Plaintiff was paid a commission on this sale. Plaintiff further alleges that on March 28, 1977, and while continuing as agent for the defendant, he procured a purchaser for the remaining property and caused a second offer to purchase the property to be signed by the purchaser. The defendant refused to execute the second instrument. This suit is for the commission allegedly due for procuring a purchaser for the remaining portion of the property.

Defendant’s answer and reconventional demand denied owing the commission on the ground that the plaintiff failed to procure a purchaser within the time limit of the contract (March 12, 1977).

In support of its motion for summary judgment, the defendant offered the affidavit of Robert K. Guillory, President of defendant corporation. In this affidavit, Guillory admits that plaintiff did find a purchaser for a portion of this property, which portion was sold and plaintiffs commission paid for that sale. He further states that the purchaser for the second portion of the property was not procured until March 28, 1977, and that defendant refused to sell. Guillory further attested that there was no extension of the agreement either orally or in writing and that plaintiff did not procure a purchaser for the property in dispute within the time period set out in the contract.

Defendant propounded interrogatories to plaintiff. The pertinent interrogatories and answers are as follows:

“INTERROGATORY NO. 3
“Do you contend that there are any oral agreements between the plaintiff and the defendant herein, and if so, please give full particulars concerning the date of the oral agreement and full particulars concerning any of the terms thereof especially including the expiration dates.”
Plaintiff responded as follows:
“INTERROGATORY NO. 8: Yes. On March 12, 1977, plaintiff telephoned defendant’s president, Mr. Guillory, advising of the procurement of purchases pursuant to the exclusive employment or broker’s contract. Subsequent to this conversation of March 12, 1977, various other communications and agreements with respect to these purchases were had, which culminated in the preparation and signing of one agreement to purchase or sell on March 16, 1977, and March 28, 1977. During the telephone conversation of March 12, 1977, defendant, through its president, accepted the offer pursuant to the exclusive employment or broker’s contract of the purchases and advised plaintiff to continue the negotiations, which resulted in the hereinmentioned agreements to purchase or sell.”

Also propounded to plaintiff was this interrogatory:

“INTERROGATORY NO. 6
“In Paragraph 8 of your petition, you alleged that on March 28, 1978 you were continuing in the capacity as defendant’s broker and agent. What written authority do you contend gave you this authority, attach a copy of any written instrument proporting to give you this authority, and if there is no written authority, do you contend that you have oral authority to continue and if so, give full particulars concerning how and when this was granted, under what authority, by whom, the dates thereof, the termination dates thereof, and any other full particulars that bear on your authority to so operate.” (Emphasis supplied)

Plaintiff responded as follows:

“INTERROGATORY NO. 6: No written authority. More authority to continue in the capacity as defendant’s broker and agent was given by defendants [sic] president on March 12, 1977. See answer to Interrogatory Number 3 above.”

Plaintiff’s answers to these interrogatories state that the plaintiff was authorized by the defendant’s president in a telephone conversation with plaintiff on March 12, 1978 to continue in the capacity as defendant’s broker and agent. A listing agreement may be in writing or it may be made orally. If written, it may be changed orally. In the case of Samuels v. Firestone Tire & Rubber Co., 342 So.2d 661 (La.1977), the court held:

“It is well-settled that an agreement listing immovable property for sale with a real estate broker need not be in writing. A contract between seller and agent may be made orally or a written contract may be changed orally.” (Emphasis supplied)

The principles governing the disposition of motions for summary judgment are set out by the Supreme Court in the case of Emp. Surplus Line Ins. v. City of Baton Rouge, 362 So.2d 561, 565 (La.1978), where the court held as follows:

“It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Andrew Development Corp. v. West Esplanade Corporation, 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Stallings v. W. H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Andrew Development Corp. v. West Esplanade Corporation, supra; Morgan v. Matlack, Inc., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Andrew Development Corp. v. West Esplanade Corporation, supra; Morgan v. Matlack, Inc., supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).”

By applying these principles and after reviewing the pleadings, affidavit and answers to interrogatories, and resolving all doubts against the mover (Portage), we are convinced that there is a genuine issue of material fact as to whether plaintiff was orally authorized to continue acting as agent for defendant beyond the expiration date of March 12, 1977. Hence, we are of the opinion that defendant is not entitled to judgment as a matter of law. Accordingly, the judgment of the trial court upholding the defendant’s motion for summary judgment shall be reversed.

For the reasons assigned, the judgment of the trial court, granting defendant’s motion for summary judgment, is reversed and the case is remanded for trial consistent with the views expressed herein. Costs of this appeal are to be paid by defendant-ap-pellee.

REVERSED AND REMANDED.


author: SWIFT, Judge.

text:
    Alvin D. ANDRUS, Sr., Plaintiff-Appellant, v. Modest BARLOW, Defendant-Appellee.
    No. 7217.
    Court of Appeal of Louisiana, Third Circuit.
    June 22, 1979.

      McClain, Morgan & Greenwald, Robert E. Morgan, Lake Charles, for plaintiff-appellant.
    Max M. Morris, Lake Charles, for defendant-appellee.
    Before GUIDRY, SWIFT and STOKER, JJ.
   SWIFT, Judge.

MOTION TO DISMISS

We issued, ex proprio motu, a rule to show cause directed to the plaintiff-appellant as to why his appeal should not be dismissed as having been untimely perfected under LSA-C.C.P. Art. 3943. The appellant has failed to answer the rule.

We dismiss the plaintiff-appellant’s appeal.

The plaintiff-appellant, Alvin D. Andrus, Sr., filed a writ of Habeas Corpus seeking the custody of his minor child from the defendant-appellee, Modest Barlow. On February 9, 1979, a formal judgment was rendered recalling the writ of Habeas Corpus previously issued and awarding the custody of Alvin Andrus, Jr. to the defendant-appellee, Modest Barlow. Notice of judgment was mailed on February 12, 1979; however, same was not necessary as the matter was not taken under advisement. LSA-C.C.P. Art. 1913.

On April 2, 1979, the plaintiff-appellant moved for and was granted a devolutive appeal to this court.

Plaintiff-appellant’s appeal, taken some 52 days after the rendition of judgment, is clearly untimely. LSA-C.C.P. Art. 3943 provides that an appeal from a judgment awarding custody of a person must be taken within 30 days from the applicable date provided in LSA-C.C.P. Art. 2087(1-3). Since no motion for a new trial was made in this case, plaintiff had 30 days from February 23, 1979 or until March 26, 1979 (March 25th being a Sunday) in which to perfect his appeal. The fact that plaintiff chose to proceed by means of Habeas Corpus is of no import, for it is well settled that the use of Habeas Corpus in purely custodial matters is no different from the use of summary or ordinary means when it comes to appealing a judgment granting or depriving one of custody. Benoit v. Blassingame, 249 So.2d 302 (La.App. 1st Cir. 1971), writ den., 259 La. 760, 252 So.2d 456.

For the reasons assigned, the appeal of the plaintiff-appellant is hereby dismissed at his cost.

APPEAL DISMISSED.