author: ELLIS, Judge.

text:
    John E. CLARK v. Louise Cavalier CLARK.
    No. 11670.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Larry Boudreaux, Thibodaux, for defendant and appellant.
    Sidney Sundbery, Houma, for plaintiff and appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

John E. Clark filed this suit for separation from bed and board on the ground of abandonment against Louise Cavalier Clark. Mrs. Clark answered, denying that she had abandoned her husband without cause. She reconvened for a separation, alleging that she had legal cause to leave the matrimonial domicile because of numerous acts of physical cruelty towards her committed by Mr. Clark.

On October 5, 1976, plaintiff filed interrogatories directed to the defendant, asking for particulars of the acts of physical cruelty alleged by her. On November 11th and December 7, 1976, counsel for plaintiff wrote counsel for defendant requesting that answers to the interrogatories be filed.

On December 30, 1976, plaintiff, alleging defendant’s failure to answer the interrogatories within 15 days as required by Article 1458 of the Code of Civil Procedure, filed a rule for defendant to show cause why default judgment should not be rendered against her. The rule was set for trial on January 7, 1977, and continued from that date until January 28, 1977, on which date it was heard. Judgment was rendered granting defendant ten days from the date of service of the judgment within which to answer the interrogatories and providing that “if the answers are not filed in that ten-day period, judgment shall be rendered in favor of plaintiff and against defendant, awarding plaintiff a separation from bed and board and dismissing defendant’s re-conventional demand.” Notice of the said judgment was mailed to defendant’s counsel on January 31, 1977.

On February 11,1977, the following judgment was signed:

“The defendant, Louise Cavalier Clark, having failed to file answers to plaintiff’s interrogatories within the ten (10) day period as ordered by this court in the judgment on rule rendered herein on January 28, 1977, and the court having considered the entire record of these proceedings, including the judgment on rule rendered January 28, 1977, and the law, including LSA-C.C.P. Articles 1469 and 1471, it is ordered, adjudged and decreed ■that there be judgment herein in favor of plaintiff, John E. Clark and against defendant, Louise Cavalier Clark, awarding plaintiff a separation from bed and board and dismissing defendant’s reconventional demand at her costs.”

There appears in the record a letter from defendant’s counsel to the clerk of the district court, dated February 11,1977, enclosing answers to plaintiff’s interrogatories. The letter and the answers were received and filed on February 14, 1977.

On February 18, 1977, defendant moved for a new trial, alleging that she had abided by all orders of the court, and that the February 11th judgment was apparently rendered without the introduction of any evidence in support thereof. On May 11, 1977, the motion for a new trial was denied. On May 26, 1977, defendant was granted a suspensive appeal.

Article 1471 of the Code of Civil Procedure provides, in part, as follows:

“If a party or an officer, director, or managing agent of a party, or a person designated under Articles 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1469 or Article 1464, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
******
“An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”

No minute entry for the above judgment appears in the record, so we assume that it was signed in chambers, without any formal motion or offer of proof by plaintiff.

In this court, defendant argues, in essence, that the “judgment by default” which the judge is authorized to render is no more than a “preliminary default”, as defined in Article 1701 of the Code of Civil Procedure, which must be confirmed under Article 1702 of the Code of Civil Procedure by the production of proof sufficient to establish a prima facie case. On the face of the judgment, it is evident that no such evidence was produced.

Plaintiff argues that “judgment by default” refers to a final judgment on the merits, and that no proof in support thereof is required by Article 1471. He further points out that Article 1471, and its predecessors in Louisiana, former Article 1513 of the Code of Civil Procedure and former R.S. 13:3792, are based on, and almost verbatim copies of, Federal Rule 37(d), 28 U.S.C.A. We note that the Federal Courts have interpreted the latter provision as permitting a final judgment on the merits to be rendered under circumstances similar to this case. See Williams v. Owen, 179 F.Supp. 268 (E.D.Ill.1959); United States v. 3963 Bottles, More or Less, etc., 265 F.2d 332 (C.A. 7 1959); Trans World Airlines, Inc. v. Hughes, 332 F.2d 602 (C.A. 2 1964).

We think it clear that our law requires that proof of a prima facie case be made before a judgment by default can be rendered and signed by a judge. We recognize that Article 1471 gives the judge authority to render such a judgment as a sanction in the event of a failure on the part of a party to obey an order of the court relative to discovery. However, the specific language of Articles 1701-1703 of the Code of Civil Procedure, requires that a prima facie case be made out by the party seeking such a judgment.

The judgment appealed from is therefore reversed and set aside, and the case remanded to the trial court for further proceedings in accordance with law. Costs of this appeal shall be paid by plaintiff. All other costs shall await final determination of the case on its merits.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    Julian B. BROOKS, Jr., as head and master of the community of acquets and gains existing between him and Rosemary B. Brooks, and Rosemary B. Brooks, Individually v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
    No. 11760.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    C. Jerome D’Aquila, New Roads, James A. George, George & George, Ltd., Baton Rouge, for plaintiffs and appellants.
    Daniel R. Atkinson, Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for defendant and appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

This is a suit for damages brought by Julian B. Brooks, Jr. and Rosemary B. Brooks, against United States Fidelity and Guaranty Company, liability insurer of Mr. and Mrs. Boyd Brooks. The claim arises out of an accident which occurred when Mrs. Brooks was allegedly struck and knocked to the ground by a baby calf owned by Boyd Brooks. After trial on the merits, judgment was rendered dismissing plaintiffs’ suit, and they have appealed.

Boyd Brooks, father of plaintiff Julian B. Brooks, Jr., was the owner of the calf, which was, at the time of the accident, somewhere between one and six weeks of age. Plaintiff Rosemary Brooks had been bottle feeding the calf since its birth. Just before the accident, she entered the pen where the calf was kept, and started to lead the calf across the pen. She stopped to see if the calf was following her, and as she turned to look for it, it nudged her leg, and she fell to the ground, suffering the injuries complained of herein.

In this court, plaintiffs argue that defendant is liable under the provisions of Articles 2317 and 2321 of the Civil Code, as interpreted in Holland v. Buckley, 305 So.2d 113 (La.1974), in which the court said:

“The issue before us is: When an innocent bystander is bitten by a dog, who shall bear the damages so caused? The bystander passing on the street, who did not provoke the attack? Or the owner of the dog, who created the risk by letting the dog go loose?”

It further said:

“We hold, therefore, that the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.
* Jjt * * * *
“The underlying reason for the owner’s liability is that, as between him who created the risk of harm and the innocent victim thereby injured, the risk-creator should bear the loss. He maintains the animal for his own use or pleasure. “Article 2321 places the master of the animal under a legal obligation to keep his animal under such guard that it does no damage to others. A fault in this obligation to control the animal and guard others from harm by it entitles the victim to recover damages thereby sustained.”

In Loescher v. Parr, 324 So.2d 441 (La.1975), the court said:

“When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others. “The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.
“This jurisprudence recognizes that the injured person must prove the vice (i. e., unreasonable risk of injury to another) in the person or thing whose act causes the damage, and that the damage resulted from this vice. Once this is proved, the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.
“The legal fault thus arising from our code provisions has sometimes been referred to as strict liability.”

In refusing writs in Harrington v. Upchurch, 337 So.2d 222 (La.1976), the court said this:

“. . . Under the facts shown, the presence of the cow in open-range highway did not create an unreasonable risk of injury to others; therefore, the owner is shown to be exonerated from fault.”

In two recent dog bite cases, this circuit has relieved the owner of responsibility because the offending animals were secured on the owner’s premises, and the parties injured were on the premises against the wishes or instructions of the owner. Dotson v. Continental Insurance Co., 322 So.2d 284 (La.App. 1st Cir. 1975); Parks v. Paola, 349 So.2d 896 (La.App. 1st Cir. 1977).

In a recent third circuit case, a boy employed to exercise horses, was thrown by one of the horses and injured. The court held that the rule of Holland v. Buckley, supra, was not applicable, since the animal was not in the custody of the owner, but was in fact under the care, custody and control of the injured party. The case was then decided on the basis of conventional negligence principles. Fontenot v. Soileau, 336 So.2d 1006 (La.App. 3rd Cir. 1976).

From the foregoing, we gather that, in order to hold the owner of an animal strictly liable for damage to another done by the animal, there must be a domestic animal, which is actually or constructively under the control of the owner, or which he has an obligation to restrain, the presence of which causes an unreasonable risk of harm to others and which injures an innocent third party.

The two Code articles provide as follows: “Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.” “Art. 2321. The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.”

In this case, as in the Fontenot case, supra, Rosemary Brooks had the actual care, custody and control of the calf, and had been feeding it for at least a week. Under that circumstance, the strict liability imposed by Articles 2317 and 2321, as interpreted, does not apply.

In their petition, plaintiffs allege the negligence of Mr. and Mrs. Boyd Brooks in that they permitted Rosemary Brooks to feed the calf, knowing her to be inexperienced, and that they failed to warn her of the danger involved. We find no evidence in the record that a baby calf is a dangerous animal, or has dangerous propensities, or that there is any danger involved in feeding such an animal. We think that Rosemary Brooks’ testimony affirmatively shows that her own failure to keep track of the location of the calf caused her to stumble over it and fall. In any event, no negligence is shown on the part of Mr. or Mrs. Boyd Brooks.

The judgment appealed from is therefore affirmed, at plaintiffs’ cost.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Eugene JOHNSON v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY.
    No. 11801.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.

      Phil E. Miley, Baton Rouge, of counsel, for plaintiff-appellant Eugene Johnson.
    Foye L. Lowe, Jr., Baton Rouge, of counsel, for defendant-appellee State of Louisiana, Dept, of Public Safety.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

Eugene Johnson instituted this suit on May 19, 1977, to obtain a restricted driver’s license and for injunctive relief against the State of Louisiana, through the Department of Public Safety. After hearing, the trial court denied the petitioner’s demands, and he has appealed. We affirm.

The basis for the petitioner’s suit is LSA-R.S. 32:415.1, which allows the granting of a restricted driver’s license under certain circumstances if the revocation of a licensee’s driving privileges will deprive him or his family of the necessities of life or will prevent him from earning a livelihood.

The only evidence offered to support the petitioner’s contention was his own testimony. His testimony shows that he works as a welder at Delta Southern, and that he usually worked the 3:30 to midnight shift, five days a week. From his own testimony, the petitioner does not need an automobile on his job; as a welder, his job activities do not require him to operate an automobile. The petitioner admitted to two convictions for DWI.

The trial judge, after hearing the testimony, found that:

“(I)t will be a substantial inconvenience if the Court did not grant him a restricted driver’s license, but it would not mean that he would lose his job and after all when a person had got two convictions on DWI it appears to the Court that he does serve to be a substantial hazard to the safety of the people using the highways.”

We have reviewed the evidence, and find no abuse of the trial court’s discretion in denying the petitioner’s application for restricted driving privileges. We affirm the judgment at the petitioner’s costs.

AFFIRMED.


text:
    David BARRON, Individually and on behalf of his minor child, Chris Barron v. ALLSTATE INSURANCE COMPANY.
    No. 11813.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.

      J. J. McKenzie, Baton Rouge, of counsel for plaintiff-appellant David Barron, etc.
    Donald R. Smith, Baton Rouge, of counsel, for defendant-appellee Allstate Ins. Co., Inc.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This matter arose out of a two-car collision between the plaintiff, David Barron, and Richard Ingalls, the insured of defendant, Allstate Insurance Company. Suit was filed to recover for damages for personal injuries to Barron and to his minor child, Chris, and for property damage, including loss of use of Barron’s automobile for a period of thirty days. The defendant requested that the plaintiff admit that he incurred no actual out-of-pocket expenses for loss of use of his automobile. Thereafter, by compromise, all claims of the plaintiff were released except the right to pursue his claim for said loss of use of the car.

Subsequently, the defendant moved for summary judgment, which the plaintiff answered, denying that there was no material issue of fact or law.

Based on the pleadings, receipt and release (the compromise agreement), and request for admissions, the trial court granted the defendant a summary judgment, dismissing the plaintiff’s demand, from which he has appealed.

Although conceding that the rule of law is that recovery for the loss of use of an automobile is limited to actual out-of-poek-et expenses incurred, the appellant urges that this Court should not follow this rule of law. He also contends, in his brief, that this rule of law is violative of the federal and state constitutions. However, no pleadings were filed in the lower court raising a constitutional question.

In view of stance regarding the summary judgment, there is no necessity for us to reach the constitutional question; in any event, suffice it to say that, as a general rule, a litigant who fails to plead and particularize the question of alleged unconstitutionality in the trial court cannot raise that issue in the appellate court. Johnson v. Welsh, 334 So.2d 395 (La., 1976).

However, after review of the record and the applicable law, we are convinced that the trial court improperly granted the defendant’s motion for a summary judgment.

Our Supreme Court, in the recent case of Alexander v. Qwik Change Car Center, Inc., 352 So.2d 188 (La., 1977), while taking cognizance of DiGiovanni v. April, 261 So.2d 360 (La.App. 1 Cir. 1972), in which appellee takes misguided solace, quoted its language in Meador v. Toyota of Jefferson, Inc., 332 So.2d 433 (La., 1976), which states:

“We also deem it worth noting, however fundamental, that unlike the rule which we are required by the Civil Code to apply in this action for breach of contract, damages for mental anguish, aggravation, distress and inconvenience, are recoverable in an action sounding in tort.”

In the DiGiovanni case, the plaintiff was given an opportunity to prove such damages, although without avail. In the instant case, Barron was given no such opportunity.

A summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, affidavits, et cetera, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. The mover must carry that burden. Morgan v. Matlack, 342 So.2d 167 (La., 1977).

Further, the possibility of, or even the likelihood of, a party being unable to prove his allegations upon a trial on the merits does not constitute a basis for rendering a summary judgment. Hemphill v. Strain, 341 So.2d 1186 (La.App. 1 Cir. 1976), writ denied 343 So.2d 1072 (La., 1977).

Therefore, the case is remanded for a trial on the merits. The costs of this appeal are to be paid by the defendant-appellee. All other costs are to await final determination of the matter.

REVERSED AND REMANDED.


author: CHIASSON, Judge.

text:
    John J. LEGENDRE and Catherine Lasseigne Legendre v. Wally RODRIGUE and the Travelers Insurance Company.
    No. 11686.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Writ Refused March 27, 1978.

      Floyd J. Falcon, Jr., Dodd, Hirsch, Barker, Avant & Wall, Baton Rouge, for plaintiffs and appellees.
    Hunt B. Downer, Jr., Waitz, Weigand & Downer, Houma, for the Travelers Ins. Co. and appellee.
    Wilbert J. Tauzin II, Thibodaux, for defendant Wally Rodrigue and appellee.
    Paul M. Batiza, Thibodaux, for State Farm Mut. Auto. Ins. Co. and appellant.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiffs, John and Catherine Legendre, were involved in an automobile accident with defendant, Wally Rodrigue, resulting in serious injuries and large medical expenses. Plaintiffs were insured by State Farm Mutual Automobile Insurance Company (State Farm) with policy liability limits of $25,000/$50,000 and uninsured motorist coverage of $5,000/$10,000. Wally Ro-drigue was insured by The Travelers Insurance Company (Travelers) with policy limits of $5,000/$10,000 for both liability and uninsured motorist coverages.

Plaintiffs first filed suit against Wally Rodrigue and his insurer and thereafter amended their petition to sue their own insurer, State Farm, under the uninsured motorist (U.M.) provisions of their policy. The basis for this claim was alleged to be the failure of State Farm to advise plaintiffs that they were entitled to U.M. coverage in an amount not less than their liability limits.

State Farm filed a motion for summary judgment to plaintiffs’ claim and also filed an intervention for subrogation in the amount of $9,174.90 which it had paid to plaintiffs under the collision and medical pay coverages of the policy.

The trial court held that defendant Ro-drigue was at fault, denied State Farm’s motion for a summary judgment and its intervention, and construed Act 137 of 1972 amending La.R.S. 22:1406 as requiring a judicial reformation of plaintiffs’ U.M. coverage to increase the amount thereof to the liability limits of their policy. The trial court granted judgment in favor of plaintiff, John Legendre, and against the defendants, Wally Rodrigue, Travelers, and State Farm, in solido, in the sum of $150,-293.14, together with legal interest from date of demand until paid. The judgment against Travelers and State Farm was limited to $5,000 and $25,000 respectively, plus interest on the entire judgment from the date of signing of the judgment until payment of the policy principal. The same type of judgment was rendered in favor of Catherine Legendre in the principal sum of $10,486.

Plaintiffs and the original defendants have not appealed nor have they answered the appeal taken by State Farm.

State Farm contends that the trial court erred in the following respects:

(1) The lower court erred in not granting State Farm’s motion for summary judgment;
(2) The lower court erred in condemning State Farm to pay interest on the entire judgment from the signing of the judgment;
(3) The lower court erred in denying State Farm’s intervention claim.

The liability and quantum aspects of the trial court’s judgment are therefore final.

The accident occurred on September 29, 1973, and the law applicable to U.M. coverage at that time was La.R.S. 22:1406 as amended by Act 137 of 1972 which provided:

“D. (l)(b) Any insurer delivering or issuing an automobile liability insurance policy referred to herein, shall also permit the insured, at his request, to increase the coverage applicable to uninsured motor vehicles provided for herein to any amount not in excess of the limits of the automobile liability insurance carried by such insured.”

After correctly holding that the case of Barbin v. United States Fidelity and Guaranty Co., 315 So.2d 754 (La.1975) was not controlling in this case, the trial court considered the meaning of Act 137 of 1972 and held:

“But in now considering this specific point, the 1972 amendment did state that the insurer ‘shall’ also permit and did not use the discretionary ‘may’ also permit. It would seem to this court that the legislative intent was that the insurer (sic) must be apprised of the opportunity which this amendment offered him to increase the limits of his uninsured motorist coverage. If he was not aware of this opportunity, if he did not know that he was entitled to this additional coverage, then he could not ‘request’ that his coverage be increased. Even accepting the argument of counsel for State Farm that the Barbin case did not hold a mandatory duty to provide this coverage unless rejected, surely it was the legislative intent for the insured to be made aware of this opportunity, and State Farm ‘as a matter of policy’ in not apprising its policy holder of this opportunity, failed in its fiduciary responsibility to its insured. It may well have been, that had it apprised the plaintiffs of this right to increase his coverage he would have declined and this problem would not have arisen in this case. He might have elected to stay with his same coverage of $5,000.00/$10,000.00 and then indeed Wally Rodrigue would not be an ‘uninsured’ motorist, but it is just as logical to assume that when the plaintiff, in transferring the insurance to his new car, raised his limits of liability that he would have also welcomed an opportunity to request an increase in his uninsured motorists coverage if he had been aware that $5,000.00/$10,000.00 was no longer the maximum limits.”

The trial court erred in holding that State Farm had a fiduciary responsibility to the plaintiffs herein. The relationship between State Farm and plaintiffs was that of seller and buyer which does not create any fiduciary duty to advise of any change in the law. Nor does Act 137 require any such disclosure, but only requires that, at the request of its insured, State Farm is obligated to sell U.M. coverage up to the limits of the liability policy. No such request was ever made by plaintiffs and therefore there could be no refusal on the part of State Farm to provide such coverage.

Act 137 of 1972 is clear and free from ambiguity and should be applied as written. Legislative intent can only be considered when the law is ambiguous or subject to two reasonable interpretations. La. Civil Code Art. 13; La.R.S. 1:4; Hebbler v. New Orleans Fire Department, 310 So.2d 113 (La.1975); Louisiana Television Broadcasting Corp. v. Total C. A. T. V., 341 So.2d 1183 (La.App. 1st Cir. 1976); Writ refused, 343 So.2d 1076 (La.1977).

Plaintiffs’ U.M. coverage should have been limited to the amount of $5,000/$10,000, and under La.R.S. 22:1406 D.(2)(b) in effect in 1973, Wally Rodrigue was not an uninsured motorist and plaintiffs cannot recover under the U.M. provisions of their policy with State Farm.

La.R.S. 22:1406 was again amended by Act 154 of 1974 and if this amendment were applicable to this case the judgment of the trial court would be correct. However, the 1974 Act is not to be applied retroactively. Doucet v. Insurance Company of North America, 302 So.2d 731 (La.App. 3rd Cir. 1974), Writ refused, 305 So.2d 134 (La.1974).

The trial court denied State Farm’s subrogation claim on the theory that State Farm was solidarily liable with the other defendants. Because we find that State Farm is not liable to plaintiffs, we need not address the issue of solidary liability. State Farm’s subrogation claims are amply supported by the record and judgment should have been rendered in its favor.

With regard to State Farm’s subrogation claims, the record shows that State Farm paid to plaintiffs the total sum of $9,174.90, of which amount $3,678 was paid for collision coverage and $5,496 for medical payments. In its petition for intervention, State Farm prays that any damages recovered by plaintiffs from Travelers be apportioned in the judgment so that the claim of State Farm for the foregoing benefits which it paid to its insured and for which it was subrogated would take precedence over that of plaintiffs.

State Farm’s policy of insurance has two different subrogation clauses, one for amounts paid by it as a result of physical damage (collision) and the other for medical payments. The clauses read essentially the same, and where pertinent, provide:

“ * * * [T]he company shall be subro-gated to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery which the injured person or anyone receiving such payment may have against any person or organization and such person shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. * * * ” (Record, p. 108, Policy, p. 15)

Additionally, State Farm had plaintiffs execute an instrument entitled “Subrogation Receipt,” the terms of which provide:

“ * * * [F]or the consideration aforesaid [collision and medical payments] and to the extent of said payment the undersigned further subrogates to said company all rights which the undersigned may have against any person or persons arising out of the loss mentioned above, and for the enforcement of such rights said insurer is hereby authorized to take any action which may be necessary either in law or in equity in its own name or that of the undersigned * * (Record, p. 220)

The foregoing constitutes the conventional subrogation agreements relied upon by State Farm.

As authority for its claim of preference State Farm cites only La.R.S. 23:1103 which we hold to be a special statute dealing with and limited to subrogation under the Workmen Compensation Statute, and not applicable or controlling in the case at bar.

The general rule is stated in R.C.C. Art. 2162 which expresses a contrary rule of preference. R.C.C. Art. 2160 defines conventional subrogation, R.C.C. Art. 2161 defines legal subrogation and R.C.C. Art. 2162 thereafter provides:

“The subrogation established by the preceding articles, takes place as well against the sureties, as against the debtors. It can not injure the creditor, since, if he has been paid but in part, he may exercise his right for what remains due, in preference to him from whom he has received only a partial payment.”

The plaintiffs claim in this case is also for damages for personal injuries and no subrogation has been granted for that portion of their claim. The payments made by State Farm [collision and medical] for which it received subrogations from plaintiffs, make plaintiffs and State Farm partial subrogor and subrogee. Bell v. Duplessis, 150 So.2d 114 (La.App. 4th Cir. 1963).

The subrogations held by State Farm are therefore for only part of plaintiffs’ loss, and in such case, plaintiffs have a preference for what remains due to them over the claim of State Farm from whom they have received only a partial payment. Gumbell v. Boyer, 46 La.Ann. 1499, 16 So. 465 (1894); First National Bank of Lafayette v. Stovall, 128 So.2d 712, (La.App. 4th Cir. 1961); Weber v. Press of H. N. Cornay, Inc., 144 So.2d 581 (La.App. 4th Cir. 1962).

We are aware of the case of Morgan v. Southern Farm Bureau Casualty Insurance Company, 223 F.Supp. 996 (W.D.La.1963), affirmed, 339 F.2d 755 (5th Cir. 1964), wherein the U.S. District Court held that a subrogee was only entitled to share pro rata in the distribution of the limited sum available. We note that this case was decided on equity because of plaintiff’s and interve-nor’s failure to cite any authority for their respective contentions.

Equity can only be resorted to where there is no express law on the subject. R.C.C. Art. 21. We therefore hold that the positive law, R.C.C. Art. 2162, is controlling herein.

The judgment of the trial court is reversed insofar as State Farm is held liable unto plaintiffs, and judgment is rendered in favor of State Farm Mutual Automobile Insurance Company and against Wally Ro-drigue in the sum of $9,174.90, together with legal interest thereon from date of judicial demand until paid and all costs. Said judgment is subordinate to the judgment in favor of plaintiffs.

REVERSED AND RENDERED.

      . “(b) For the purposes of this coverage the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the uninsured motorist coverage carried by an insured.”


text:
    PAUL E. RIVIERE, INC. v. UNIVERSAL EXCAVATORS, INC., et al.
    No. 11784.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.

      Richard T. Regan, Metairie, for plaintiff, appellee.
    Curtis M. Baham, Jr., Hammond, for Universal Excavators, Inc., defendant, appellee.
    Thomas S. Derveloy, Jr., Covington, for defendants, appellants, South Cent. Bell Tel. Co.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

The defendant, South Central Bell Telephone Company (South Central Bell), sus-pensively appeals a judgment recognizing plaintiff’s labor and materialmen’s lien filed pursuant to La.R.S. 9:4812, the Louisiana Private Works Act, and granting plaintiff a money judgment against defendant in the sum of $51,205.00.

On October 14, 1975, South Central Bell entered into an unrecorded written contract with Universal Excavators, Inc. (Universal) for the installation of a buried cable and a 30 inch steel casing under the Interstate 10 roadway at the intersection of U.S. Highway 190. Universal then subcontracted the furnishing and installation of the steel casing to plaintiff under a written contract dated November 17, 1975. The contract price on the principal contract was $87,-953.00. The subcontract price between Universal and plaintiff was $51,205.00. South Central Bell paid to Universal an amount in excess of $68,800.00 on the principal contract; however, plaintiff was never paid by Universal.

Plaintiff, Paul E. Riviere, Inc., filed suit for recognization of its lien and for an in solido money judgment against Universal, South Central Bell and the Louisiana Department of Highways.

On plaintiff’s motion, suit against the State was dismissed. Thereafter, South Central Bell filed exceptions of No Cause of Action and Non-joinder of an Indispensable Party. The trial court overruled the exceptions filed by South Central Bell and rendered judgment in favor of plaintiff and against Universal in the sum of $51,205.00 with interest and attorney’s fees, and against South Central Bell in the sum of $51,205.00 and recognized plaintiff’s lien on the 310 feet of 30 inch steel casing located under Interstate Highway 10. Judgment was also rendered on a third-party demand in favor of Universal and against South Central Bell in the sum of $15,528.95.

Plaintiff, Universal, and the State have not answered nor have they filed an appeal.

South Central Bell alleges the following specifications of error:

“(1) The district court erred in recognizing a sub-contractors lien without requiring stricti juris compliance with the Private Works Act (R.S. 9:4801 ff)
“(2) It is error to recognize as sufficient a lien affidavit which does not name the owner nor describe immovable property sought to be liened.
“(3) It was error in this case to dismiss the Louisiana Department of Highways and proceed to trial in its absence, and concomittantly, the Exceptions of No Cause of Action and Non-joinder of an Indispensable Party were erroneously overruled.
“(4) The trial court erred in not holding plaintiff’s in rem claim perempted and in not holding its in personam claim prescribed.”

“It is settled jurisprudence that LSA-R.S. 9:4801 and 9:4812, being in derogation of the common rights of owners and mortgagees, must be strictly construed and are not to be extended beyond their express terms. Lumber Products, Inc. v. Crochet, 244 La. 1060, 156 So.2d 438.” Pringle Associated Mortgage Corporation v. Eanes, 208 So.2d 346 (La.App. 1st Cir. 1968). As to the form required for perfection of a valid lien, La.R.S. 9:4812 only provides that “. a copy of his estimate or an affidavit of his claim or any other writing evidencing same, . ” if recorded shall create a privilege upon the said property. The statute does not address itself to what is required to be included in the affidavit of claim; it only requires that one be recorded.

Article 3348 of the Civil Code, which deals with the methods and procedure for recordation, provides that, “In all cases of special privileges the property subject to such privileges must also be described.”

In Hughes v. Will, 35 So.2d 241 (Orl.La.App.1948) the court, while recognizing that there is nothing sacramental about the form or contents of a lien affidavit, held:

“If liens are to be strictly construed, it is obvious that there must be set forth information as to how the claim arises, against whom it is to be asserted, and the amount thereof.”

The lien affidavit filed by plaintiff recites:

“That Paul E. Riviere, Inc. sold to Universal Excavators, Inc., as contractor, and Louisiana State, Department of Highways, as owner, certain building materials and performed certain labor, principally: furnish and install 310' of 30" Steel Casing under I — 10 roadway at intersection of Hwy. 90, to be installed by the dry bore method, for an agreed price and sum of $51,205.00, as will appear from the state of account attached hereto and made a part hereof.
“The said account represents materials and labor sold and delivered to Universal Excavators, Inc. and Louisiana State, Department of Highways, for use in and were actually used in the construction of a building on the property described as follows, to-wit:
State Project # 450-18-03, beginning at Station # 319437, 1-10 near the intersection of U.S. Hwy. 190 (Fremaux Road) and 1-12.”

We agree with the trial judge that plaintiff was in compliance with the provision of La.R.S. 9:4812 for the perfection of its lien claim. The property and its location is sufficiently .described; the amount and how the claim arises is set forth; and the parties against whom the lien is asserted are identified.

Appellant contends that it, the true owner, was not mentioned in the affidavit and that the lien is therefore not effective against it. Where, as here, the true owner cannot be identified solely because of the owner’s failure to record its contract, the claimant’s lien cannot be defeated because of its failure to name the true owner. The evidence establishes that plaintiff at all times dealt with the principal .contractor, Universal, on what it perceived to be a state project; that plaintiff was under the belief that the materials were sold to the parties named in the affidavit; and that those parties or either of them were owners of the materials in question. The failure of South Central Bell to record its contract was the direct cause of plaintiff’s erroneous beliefs. The evidence also establishes that South Central Bell was named in plaintiff’s subsequent petition in this suit and in the notice of lis pendens when the truth was ascertained.

South Central Bell next asserts that because the lien affidavit was invalid for form plaintiff failed to file a valid lien affidavit timely and, plaintiff also failed to file its notice of lis pendens timely, therefore, its in rem claim is perempted and its in personam claim is prescribed. The date of last delivery of all material or last furnishing of services by plaintiff was January 5, 1976. Plaintiff’s affidavit was filed on March 1, 1976, within the sixty day period required by La.R.S. 9:4812. The notice of lis pendens was filed on October 20, 1976, within one year from the recordation of plaintiff’s lien claim as required by La.R.S. 9:4812. We, therefore, find no merit in appellant’s contentions that the claims are perempted or prescribed.

Finally, South Central Bell asserts that it was error for the trial court to overrule its exceptions of No Cause of Action and Non-joinder of an Indispensable Party, namely, the Louisiana Department of Highways. These exceptions were apparently founded on the proposition that plaintiff’s lien affidavit named Universal and the Louisiana Department of Highways as owners of the property described therein. The evidence amply supports a finding that the property described in the affidavit belongs to South Central Bell, and, therefore, the State is not an indispensable party.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: LOTTINGER, Judge:

text:
    Albert LANDRY et al. v. Edith P. DENT et al.
    No. 11939.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 21, 1978.
    Writ Refused March 27, 1978.
    Gordon M. White, Baton Rouge, for appellants.
    Kenneth Barnette, H. Payne Breazeale, Breazeale, Sachse & Wilson, Baton Rouge, for Dent & St. Paul.
    Horace C. Lane, Baton Rouge, for U. S. F. & G.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge:

ON MOTION TO DISMISS

Ex proprio motu this Court issued a show cause order as to why this appeal should not be dismissed for. an untimely filing of the appeal bond.

After a trial on the merits, and for oral reasons, judgment was rendered in open court on June 1, 1977 dismissing plaintiffs’ suit, and signed on June 3, 1977. This case not having been taken under .advisement, and June 3 being a Friday, the delay for applying for a new trial commenced to run on June 6, 1977. LSA-C.C.P. art. 1913 and 1974.

Plaintiffs filed their motion for appeal on July 20, 1977, and the appeal bond on September 2, 1977.

Plaintiffs claim that their untimely filing of the appeal bond was through no fault of their own but the negligence of the clerk’s office in failing to send notice of appeal before the sixty day time limitation.

LSA-C.C.P. art. 2121 provides that after an order of appeal is granted “the clerk of court shall mail a notice of appeal to counsel of record of all other parties, to the respective appellate court) and to other parties not represented by counsel. The failure of the clerk to mail the notice does not affect the validity of the appeal.” There is no requirement that the clerk of court send notice of appeal to the party that has appealed. Thus, any failure of the clerk to send the notice of appeal cannot act as an excuse for the late filing of an appeal bond.

The filing of the appeal bond on September 2, 1977 was untimely which is fatal to this appeal necessitating its dismissal. LSA-C.C.P. art. 2087; Harris v. State Farm Auto. Ins. Co., 345 So.2d 1205.(La.App. 1st Cir. 1977).

Plaintiffs also argue that LSA-C. C.P. art. 2124, as amended by Act No. 176 of 1977, Regular Session, eliminating the need for posting a devolutive appeal bond, should be retroactively applied making their untimely filing of the bond a moot issue. We disagree.

Act No. 176 of the 1977, Regular Session, in part provides:

“Section 4. The effective date of this Act is January 1, 1978; the provisions hereof shall apply to all appeals in which the order of appeal is granted on or after the effective date hereof.”

The language clearly makes the application of the Act prospective and not retrospective.

Therefore for the above and foregoing reasons this appeal is dismissed at appellants’ costs.

APPEAL DISMISSED.


author: LOTTINGER, Judge.

text:
    Shirley Jean PENCE v. CITY OF BATON ROUGE et al.
    No. 11624.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 1978.
    Lemeul E. Hawsey, III, Baton Rouge, of counsel for plaintiff-appellant Shirley Jean Pence.
    Joseph F. Keogh, Parish Atty., Baton Rouge, of counsel for defendant-appellee City of Baton Rouge, et al.
    Charles E. Pilcher, Asst. Parish Atty., Baton Rouge, of counsel for defendant-ap-pellee City of Baton Rouge et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a workmen’s compensation suit wherein the plaintiff, Shirley Jean Pence, concubine of the deceased employee, sues for death benefits. The defendants filed an exception of no cause and no right of action. The exception of no right of action was sustained and suit was dismissed with prejudice.

In reversing this Court in Henderson v. Travelers Ins. Co., 346 So.2d 816 (La.App. 1st Cir. 1977) reversed 349 So.2d 886 (La.1978), our Supreme Court acknowledged the plaintiff-appellant concubine’s right of action.

Therefore, for the above and foregoing reasons, the judgment of the trial court is reversed and remanded for further proceedings in accordance with the views expressed by the Supreme Court in Henderson v. Travelers Ins. Co., at appellee’s costs to the extent allowed by law.

REVERSED AND REMANDED.


author: LANDRY, Judge.

text:
    David McKOWEN, M. D., Individually and for the Use and Benefit of the minor Feltus B. McKowen v. GULF STATES UTILITIES COMPANY et al.
    No. 11841.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 1, 1978.

      Roger M. Fritehie, Baton Rouge,- of counsel for plaintiff-appellee David McKowen, M.D., Individually and for the use and benefit of the minor, Feltus B. McKowen.
    Boris F. Navratil, Baton Rouge, of counsel for defendant-appellant American Home Assurance Co.
    Robert J. Vandaworker, Baton Rouge, of counsel for defendant-appellant Gulf States Utilities Co.
    James E. Moore, Baton Rouge, of counsel for third party defendant-appellee Aetna Casualty and Surety Co. and Asset Owners, Inc.
    Robert L. Kleinpeter, Baton Rouge, of counsel for third party defendant-appellee South Carolina Ins. Co.
    Dermot S. McGlinchey, New Orleans, of counsel for third party defendant-appellee Insurance Company of North America.
    H. Lee Leonard, Lafayette, of counsel for third party defendant-appellee Audubon Ins. Co.
    W. Paul Andersson, New Orleans, of counsel for third party defendant-appellee Chicago Ins. Co.
    R. Gordon Kean, Jr., Baton Rouge, of counsel for J. S. Dougherty, Thomas P. Singletary, M. Stewart Dougherty, Jr., and J. Noland Singletary.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Gulf States Utilities Company (GSU), a public utility distributing electricity, and its insurer American Home Assurance Company (American) (Appellants), appeal from judgment against them, pursuant to jury trial, awarding plaintiffs special and general damages in amounts of $36,444.08 and $650,000.00, respectively, for serious electrical burns suffered by Feltus B. McKowen, minor son of plaintiff David McKowen, when the metal mast of a sailboat young McKowen was attempting to push ashore on False River (River) contacted GSU’s transmission line running along the river bank. We affirm.

RELEVANT BACKGROUND INFORMATION

The “electrocution” incident occurred about noon, May 4, 1975, on the River, a former segment of the Mississippi River, which is presently a lake and is situated in Pointe Coupee Parish. The scene was the waterfront of a “campsite” belonging to Thomas P. Singletary, Noland J. Singletary and Juliette Singletary, wife of Malcolm S. Dougherty, which property was under lease to a corporation known as Asset Owners, Inc. (Asset) of which concern Malcolm S. Dougherty was president. Asset is wholly owned and controlled by the Singletarys for all practical purposes. All of said owners, Asset, Dougherty and their numerous insurers were also made defendants herein.

On conclusion of trial and before the jury was charged, all defendants except Appellants compromised the claims against them for the sum of $350,000.00, plaintiffs reserving all rights against Appellants. The trial judge declined Appellants' request to inform the jury of the compromise and the amount thereof. The judge did, however, instruct the jury that while Appellants were the only remaining defendants, the jury must determine the liability of all defendants. The jury exonerated all defendants save Appellants. Plaintiffs have answered the appeal requesting an increase in the award of general damages.

The Singletary Camp (Camp) is situated on a plot of land lying between La. Highway 1 and the bed of the River. The frontage along the highway is in effect a bluff running toward the water approximately 200 feet where the land drops abruptly and then slopes an additional 100 feet or so to normal low water level. The property was purchased by the Singletarys many years ago. Rather recently it was leased to Asset for a ten year term with a renewal option. The lease provides for a monthly rent of $500.00, and obligates Lessee to pay all expenses of operation including insurance, taxes and utilities. Lessee is also required to hold lessors harmless from liability for claims for injury to persons hurt on the premises. All improvements constructed by Asset become the property of Lessors at the end of the lease. Since acquiring the lease, Asset has spent approximately $50,000.00 improving and enlarging the Camp, erecting a swimming pool and tennis court on the bluff and erecting two piers or walkways extending from above the high water mark into the water beyond the normal low water mark. One pier has a boathouse attached.

GSU’s transmission line runs along the river bank between the high and low water marks pursuant to a servitude agreement or right of way from the State of Louisiana which owns the area where the line is constructed. The line runs along the bank virtually the entire river length which is approximately 10 miles. In some areas, however, the line has been rerouted to run along Highway 1. The line consists of two “hot” or charged transmission-distribution lines, strung one above the other on poles, with a neutral wire between. The sailboat contacted the lower line which carries 2400 volts of electricity and is suspended 23 feet 5 and lh inches above the land below. During low water, the land beneath the line is dry to a distance of about 70 feet to the low water line. On the day in question, the water was high due to recent rains. The water was approximately 10 inches deep under the transmission line and the water line extended a few feet shoreward of the wire. A dry bank of some 30 or so feet existed between the water’s edge and the foot of the bluff. The line was approximately 22 feet 8 and V2 inches above water level.

Over the years, the River has become progressively more popular as a fishing and summer resort. Both banks of the River are now lined with camps, permanent residences and summer homes of every kind and price range. Many of these “camps” have piers jutting out into the River for the convenience of their owners. Many also have boat houses. In more recent years, water skiing and sailing have become commonplace activities on the River. A marina type operation known as the Lighthouse is situated about .9 miles from the Singletary Camp; the Pelican Yacht Club, a sailing club, is located about 2 or so miles away. Approximately .4 miles away is a very popular restaurant.

On the day of the accident, Feltus McKowen, then 16 years of age, was on an outing with his teen age companions John Shoptaugh, Manya Peters and Mary K. Ge-race. The party, clad in bathing suits, was sailing on the River. Feltus mentioned that he knew the Singletarys who owned a nice camp on the opposite side of the river, and that he wished his companions to see it. None of the group, except Feltus, had visited the Singletary Camp previously. Feltus had been there perhaps two or three times. John Shoptaugh, skipper of the sailboat, sailed the vessel to Singletary Camp boathouse pier and tied the boat to the end of the pier, which was about ankle deep in water. Feltus and Miss Gerace went ashore. Shoptaugh and Miss Peters remained in the sailboat. Feltus and Miss Gerace unexpectedly encountered Mr. Malcolm S. Dougherty and his son carrying a sailboat toward the water. Dougherty had purchased the boat for his children and intended to assemble the craft for launching. A catamaran owned by Thomas P. Singletary was floating free next to the pier a distance of about 10 to 15 feet out from the water’s edge. After an exchange of greetings between Feltus and the Doughertys, the conversation turned toward the catamaran. The nature of the discussion is in serious dispute. Following the discussion, Feltus and Miss Gerace entered the water with the intention of beaching the catamaran. The catamaran consists of twin pontoon hulls connected by a square aluminum frame on which is stretched a rubber trampoline style deck. It is equipped with an aluminum mast 22 feet 4 inches long. The mast mounts in a socket on the forward part of the frame, which socket is 2 feet above water level when the craft is afloat. The mast was in place and extended to a height of 24 feet 4 inches above water level. Feltus positioned himself in thigh-deep water at the rear of the catamaran. He instructed Miss Gerace, who was between the craft and the water’s edge in water about mid-calf deep, to take hold of a pontoon and pull toward shore while he pushed the vessel. In pushing, he placed his chest against the metal cross bar of the frame and shoved with his body and hands. When the front of the pontoons reached a point about 2 or 3 feet landward of the line and was just about on dry land, the mast of the catamaran touched the wire. The McKowen lad was transfixed to the metal frame. Mr. Dougherty, who had resumed assembling his boat, was made aware of the accident by the noise resulting from the contact and the screams of Miss Gerace. Miss Gerace, who was changing position from one pontoon to another at Feltus’ suggestion, was not touching the vessel when the mast contacted the line. Mr. Dougherty took a wooden paddle, waded into the water and pushed the catamaran outward, breaking contact with the wire. The McKowen lad fell free into the water and was brought ashore by John Shoptaugh and Mr. Dougherty.

THE ISSUES

Although Appellants are the sole remaining defendants, liability of all defendants is before us because Appellants, in addition to urging GSU’s freedom from negligence, contend that the jury erred in rejecting Appellants’ alternative demands that said other defendants were either solely liable for the accident or were joint tort feasors with GSU. Appellants also reurge their plea of contributory negligence on the part of Feltus McKowen in bar of plaintiff’s claims. Finally, Appellants maintain the trial judge erred in failing to give certain requested instructions and in giving improper instruction concerning the duty of care owed by the owners of electrical transmission lines.

CONTRIBUTORY NEGLIGENCE OF FELTUS McKOWEN

Feltus McKowen is a bright young man. He was a sports fan who actively participated in all sports, particularly swimming and cross country running. His routine included 8 miles of running daily. He had been a lifeguard. He had sailed on the River numerous times before and had been to the Singletary Camp on two or three prior occasions. For all practical purposes, he could not independently recall the incidents leading to the accident. He was unaware of the presence of the transmission line. He did not recall seeing the line while pushing the catamaran.

Appellants maintain McKowen was negligent in not seeing the line. They infer that because he frequented the River and participated in water sports thereon, he should have been aware of the line and taken steps to protect himself. They charge that McKowen had to look up while pushing the catamaran and that had he been observant at all, he would have seen the line and avoided it.

In so contending, Appellants rely upon Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976), which held a 16 year old youth contributorily negligent for climbing a 30 foot utility pole to cut and remove a wire. It is elementary that contributory negligence is a matter of fact to be determined in the light of the circumstances of each case. Cates appropriately noted that “Electric wires on a pole are an announcement of danger to almost anyone smart enough to get himself in contact with a wire above the ground”. The facts in Cates make it totally inapplicable to the case at hand.

We find no useful purpose that would be served by a detailed analysis of all cases dealing with contributory negligence in cases of this nature. It suffices that in this case, the record shows no awareness of McKowen concerning the presence of the line. Under the circumstances, we find no evidence to charge him with notice of its presence. Moreover, nothing indicates any awareness on his part of a known danger or any intent on his part to voluntarily or unnecessarily expose himself to danger. See Burley v. Louisiana Power and Light Company, 327 So.2d 585 (La.App. 4th Cir. 1976). We concur in the jury’s finding McKowen free of negligence.

NEGLIGENCE OF GSU

In essence, GSU contends that it was free from negligence because it complied with the U. S. Department of Commerce, National Bureau of Standards, Safety Rules for the Installation and Maintenance of Electrical Transmission Lines, Handbook 81 (Code), more particularly Section 232, which prescribes minimum clearances under specific circumstances. GSU notes that Section 232 does not prescribe specific clearances for lines strung between high and low water marks on the banks of lakes or streams. According to Section 232, a line overhanging an area involving pedestrian traffic only is required to be elevated 15 feet. A line crossing a driveway is required to be elevated 23 feet. It is suggested that the area in question was in effect a pedestrian area and, alternatively, one requiring no greater elevation than a driveway or public road.

We note other provisions of the code which are pertinent, namely:

Section 20, Rule 200 (Scope of Rules) Page 42.
“(B): These rules are not complete specifications but are intended to embody the requirements which are most important from the standpoint of safety to employees and the public.
“(C): Construction should be made according to accepted good practice for the given local conditions in all particulars not specified in the rules.”
Section 21, Rule 210, Page 43, General Requirements Applying to Overhead and Underground Lines:
“All electric supply and communication lines and equipment shall be of suitable design and construction for the service and conditions under which they are to be operated.”
Rule 211, Page 44, Installation and Maintenance:
“All electric supply and communication lines and equipment shall be installed and maintained so as to reduce hazards to life as far as practicable.”
Rule 214, Page 45, Isolation and Guarding:
“(A) Current carrying parts. To promote safety to the general public and to employees not authorized to approach conductors and other current-carrying parts of electric supply lines, such parts shall be arranged so as to provide adequate clearance from the ground or other space generally accessible, or shall be provided with guards so as to isolate them effectively from accidental contact by such persons.”

Our jurisprudence is established to the effect that compliance with the Code does not per se relieve the owner of'electrical transmission lines of negligence. The hereinabove cited rules make it clear that the Code prescribes minimum requirements only. In Burley v. Louisiana Power & Light Company, 319 So.2d 334 (La.1975), the Supreme Court observed that the Code is entitled to such probative weight as it warrants in the judgment of the court. We add that this determination must be made in the light of the circumstances of each case.

Generally, the land beneath GSU’s line is dry. On the day of the accident, the water stood at 18.59 feet, somewhat above the normal low water mark. Records of the U. S. Army Corps of Engineers, New Orleans Division, show that during the four year period preceding the accident, the River rose to 18.59 feet or above on at least 44 days. During the ten year period preceding the accident, the River rose to 18.59 feet or higher every year except two.

GSU employees were familiar with the activities and water sports being indulged in on the River. They were aware of the Lighthouse, a marine type establishment where GSU had raised the transmission lines to accommodate boats, which establishment is about .9 miles from the Single-tary Camp. GSU had also elevated lines at the Pelican Yacht Club situated about 2 miles from the scene of subject accident. P. 0. Davidson, a GSU employee, was cognizant of a similar accident which happened months prior.to subject accident when a sailboat mast contacted GSU’s line. It also appears that an aerial reconnaissance by GSU employees prior to this accident disclosed an area along the River where the masts of sailboats were reported to be dangerously near the line.

It further appears that when the line was constructed years ago, it was over water because the level of the River was then very much higher. Subsequent to installation of the line, the level of the River was lowered by means of a control structure and the normal level of the water was reduced several feet, exposing bank which had previously been covered during normal low water.

The record amply supports the finding that GSU must be charged with knowledge that at times boats, including sail boats, would be brought beneath its wires at almost any point along the River. People owning camps and homes were obviously launching and returning to land beneath the lines during periods of high water and were using dry land beneath the line for the same purposes during low water.

Under such circumstances, it was incumbent on GSU to elevate its lines to such height necessary to the safety of the boating public. Since the Code apparently prescribes no minimum height for the area in question, it was GSU’s obligation to provide for the public safety by taking practicable steps to reduce the hazard; this GSU did not do. It did not provide such clearance as was reasonably required for reasonably foreseeable use of the surface below. GSU also failed to provide guards to effectively isolate its line from accidental contact by persons using the surface below for reasonably foreseeable purposes.

NEGLIGENCE OF THOMAS P. SINGLE-TARY, J. NOLAND SINGLETARY AND JULIETTE SINGLETARY DOUGHERTY

As owners of the land, these parties are allegedly liable for failure to negotiate with GSU to remedy the condition existing. There is no record proof of said parties’ ownership of the land in the servitude area. It is conceded that GSU’s servitude is from the state and not the Singletarys. From the record, we deduce that the land on which the line is situated is a portion of the river bed belonging to the State of Louisiana. Assuming, arguendo, that the land was individually owned, it is not shown that any owner had knowledge of a dangerous condition and therefore had no duty to request an alteration. Moreover, control of the line rests exclusively with GSU, which is primarily responsible for its construction and maintenance.

It is suggested that these owners had knowledge of the danger because two teen age sons of Thomas P. Singletary had a similar accident while assembling a sailboat on dry land under the wire. The accident, which happened about 14 months prior to subject incident, resulted in only minor injury to an acquaintance of the Singletary boys. The matter was kept secret by all concerned because of fear on the part of the Singletary boys that their camp privileges would be curtailed if the incident were disclosed. The record conclusively establishes that none of the owners were made aware of this incident until after the McKowen accident.

The owners did not grant the servitude. While they were aware of the line, they were unaware that it posed a danger. They had no knowledge of the prior similar incident on their premises. We find, as did the jury, that they were under no duty to request alteration of the line under the circumstances of this case.

LIABILITY OF THOMAS P. SINGLETARY

As owner of the catamaran, Single-tary allegedly possessed a dangerous instrumentality. Additionally, it is suggested that as father of the boys who had experienced a similar incident, he is liable for their tort in failing to report the occurrence based upon a parent’s liability pursuant to La.C.C. Articles 2317 and 2318. The catamaran is not per se a dangerous instrumentality. Singletary did not know the McKowen lad prior to the accident, and was not present when the accident occurred. We find he owed no duty to McKowen under the circumstances.

We also find no liability on Single-tary’s part because of the actions of his minor sons in not reporting the previous accident. In so doing, the boys did not commit a tort. They owed no duty to McKowen under the circumstances.

NEGLIGENCE OF MALCOLM S. DOUGHERTY

Dougherty’s liability is urged on the dual ground that as President of the lessee, Asset, he was obliged to require GSU to remedy the dangerous condition created by the line and that, being present and having requested McKowen to beach the catamaran, he should have warned McKowen of the danger.

The evidence is in direct conflict concerning whether or not Dougherty requested McKowen to beach the craft. Miss Gerace testified in effect that Dougherty requested McKowen to beach the boat which was floating free. Mr. Dougherty testified that he did not request the youth to bring the craft to shore. He testified in effect that McKowen asked permission to look at the boat and to show it to his friends, and that Dougherty gave such permission and merely requested that McKowen tie the boat back to the dock when he finished. As mentioned before, McKowen had no independent recollection of events. His other acquaintances were not within hearing distance of the conversation between him and Dougherty.

As President of lessee corporation, Dougherty knew of the presence of the lines, but had no more control over the lines than did the owners of the land. The jury evidently concluded that he had no reason to believe McKowen would move the boat to land and owed no duty to the McKowen lad. Under the circumstances, we find no error in the jury finding that Mr. Dougherty was not negligent.

ERRONEOUS JURY INSTRUCTIONS

Appellants contend that the trial judge improperly instructed the jury that “Either the wires must be insulated or at least placed beyond danger line of contact with human beings”, and that “if you find that an ultrahazardous situation existed by reason of an uninsulated high voltage line, then the utility is liable . . without the necessity of further proof of fault. .” Appellants suggest that the alleged charge in effect instructed the jury that uninsulated high voltage lines are hazardous per se and the utility is liable for anyone injured thereby.

Appellants have quoted the language out of context in that the first quote was preceded by instruction that a utility company maintaining such a potentially dangerous facility is held to a high degree of care. The latter was implemented by the instruction that a utility is liable for damage to any person who might foresee-ably contact a wire which creates a hazardous condition. We find this to be proper instruction.

The issue of whether a jury should receive evidence of settlement by one or more alleged co-tort feasors, and the amount thereof, appears res nova in our jurisprudence.

It is well settled, however, that our jurisprudence favors compromise and settlement of litigation. State, Department of Highways v. Hunter, 309 So.2d 786 (La.App. 1st Cir. 1975).

We think the trial judge’s refusal to give the instruction was proper because the information would have unduly prejudiced the jury regarding the issues of quantum and liability of the defendants who compromised the claims against them. It is elementary that such a disclosure would have no relevance to the liability of GSU. The jury’s awareness of the settlement may have prompted the jury to reduce the award against GSU if the jury found GSU alone liable. Such an occurrence would redound to the benefit of GSU and would, in our view, be improper as it would enable GSU to benefit from a settlement by one not liable. The settlement could be relevant to GSU only if the compromising defendants were found to be solidarily liable with GSU thereby entitling GSU to contribution if GSU paid the entire judgment. Plaintiffs took a calculated risk in accepting $350,000.00 from the settling defendants. The settlement would have been adverse to plaintiff if the jury had rendered a verdict which held the compromising parties alone liable for an amount in excess of $350,-000.00, or held them liable in solido with the remaining defendants in an amount such that their proportionate share of the judgment exceeded $350,000.00. We believe that a plaintiff taking such a compromise risk must be allowed to benefit as well as lose from a compromise favored in law. See the reasoning used in Bill Currie Ford, Inc. v. Cash, 252 So.2d 407 (Fla.App.2d Dist. 1971).

DAMAGES

Although Appellants have not complained of the amount of. the award, we must address the question of general damages because plaintiff’s answer to the appeal requests an increase of said amount.

Feltus McKowen was a 16 year old high school student at the time of the accident. He anticipated a dental career. The accident resulted in most severe electrical burns which the medical testimony categorizes as the most difficult type of burn. The current entered his body via the chest and right arm; it exited on the back of the left hand and wrist. In effect, a hole was burned in his chest, destroying the lower half of the sternum (breast bone), a considerable portion of the rib cage over the heart area, all flesh in the area, virtually all of the pericardial sac (a membrane containing heart protective fluid), and left a burn scar the size of a silver dollar on his heart. His right arm was literally blown open, destroying virtually all of the biceps and considerable flesh. Surgery has restored the arm to a nearly normal appearance, but the loss of muscle has greatly reduced the strength of that member. His left wrist is somewhat limited in motion, as are the fingers on his left hand.

The patient was hospitalized in Baton Rouge from the date of the accident until May 29, 1975. During this interval, he underwent surgery and numerous painful skin grafts. His injuries were medically described as most painful. On May 29, 1975, the patient was moved to the Shriners Burn Clinic, Galveston, Texas, which specializes in the treatment of burn cases. Here the patient underwent additional surgery and skin grafts. On the night of June 5,1975, a hole, the size of a silver dollar, erupted in the heart. The hole was closed by emergency surgery performed while the lad was fully awake. Three hours later, the sutures closing the hole failed and the surgical process was repeated, again while the patient was conscious. The patient recovered and after several weeks of additional hospitalization in Galveston and Baton Rouge, he was discharged wearing a fitted plastic shield over his chest to protect his heart because the normal protective rib cage and flesh no longer exists. This shield must be worn for the rest of his life. Despite the injuries, the patient leads a fairly routine life for a young man his age.

Plaintiff took considerable effort to attempt to establish loss of future income because of Feltus’ inability to become a dentist due to the loss of strength in his left wrist and right arm. He is now a business administration student in college. We are not particularly impressed with the testimony offered to establish the difference in earning capacity between a dentist and a college graduate with a degree in business administration.

Unquestionably, Feltus has suffered most severe and intense physical and mental pain. He will undoubtedly experience additional pain and discomfort during his lifetime. We view the award as being mostly for pain and suffering and, to some extent, compensation for loss of future earning capacity. We find the award of general damages well within the discretion permitted the jury pursuant to Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

The judgment is affirmed at Appellants’ cost.

Affirmed.


text:
    The HANOVER INSURANCE COMPANY et al. v. FORTE AND TABLADA, INC., et al. CITY OF PLAQUEMINE v. FORTE AND TABLADA, INC., et al.
    Nos. 12000, 12001.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Writ Refused June 2, 1978.
    William C. Dupont of Dupont, Dupont & Dupont, Plaquemine, for City of Plaque-mine, appellant-plaintiff.
    Patrick W. Pendley of Freeman & Pend-ley, Ltd., Plaquemine, for Forte & Tablada, Inc., appellee-defendant.
    Jack T. Marionneaux and F. Barry Mari-onneaux, Marionneaux & Marionneaux, Plaquemine, for Hanover Ins. Co., Hartford Fire Ins. Co., National American Ins. Co., Royal Globe Ins. Co. and Southern American Ins. Co., appellee-defendant.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

In this case the defendants were attempting to take the depositions of the Mayor and Board of Selectmen of the City of Plaquemine, which is a plaintiff in one of the consolidated cases. On December 9, 1977, the date of the depositions, the first witness scheduled was Mr. Russell Haydel, one of the selectmen. The attorney for defendants requested that no one be present in the room during the taking of the depositions except the witness, the court reporter, and the attorneys, with the attorney for the City to be assisted by a representative of the City. The attorney for the city was of the opinion that the mayor and all of the selectmen were entitled to remain in the room during the taking of the deposition. At that time, the taking of the deposition was recessed, and the defendants filed a motion to compel the city to designate a corporate representative to remain in the room during the taking of the deposition. After argument, the court ordered that the City of Plaquemine designate a representative to appear and act for the municipal corporation during the discovery phase of the litigation and at the trial. From that judgment, the City of Plaquemine has appealed to this court.

Defendant Forte and Tablada, Inc. has moved for the dismissal of the appeal on the ground that the judgment of December 19, 1977, is interlocutory in nature and not subject to appeal. The city opposes the dismissal of the appeal on the grounds that it is permitted by R.S. 13:4431, which provides:

“In any case where any district court has granted any restraining order, preliminary injunction, permanent injunction, or other process which may restrain the execution or enforcement of any provision of the constitution or of any act, law or resolution of the legislature of Louisiana, the defendant or defendants or any person or persons affected thereby, may sus-pensively appeal the order or judgment to the court of competent appellate jurisdiction.”

They allege that, since the jnayor and board are charged by law with the care, management and control of the municipality, its property, and its finances, any attempt to exclude any of these officials from the taking of a deposition would in effect, restrain the execution or enforcement of the law, and be in violation of R.S. 13:4431.

We disagree. The circumstances under which a deposition can be taken is controlled by Article 1421 et seq., of the Code of Civil Procedure, and has nothing whatsoever to do with the care, management and control of a municipality. Under Article 1426 of the Code, the “court in the district where the deposition is to be taken may make any order which justice requires to protect the party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . ” The court in this case has exercised its authority in that manner by limiting the number of representatives which the City of Plaquemine may have at the taking of depositions of the mayor and selectmen and any other witnesses who may be deposed.

Under those circumstances, the city is not entitled to a suspensive appeal under the provisions of R.S. 13:4431, and the order complained of herein is interlocutory and non-appealable.

The appeal of the City of Plaquemine is therefore dismissed and the city is to pay all costs of this appeal for which it may be liable under the law.

APPEAL DISMISSED.


author: FORET, Judge. CULPEPPER, Judge,

text:
    Bertha J. McPHERSON et al., Plaintiffs-Appellants, v. CATAHOULA PARISH POLICE JURY, Defendant-Appellee.
    No. 6369.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Rehearing Denied May 24, 1978.
    Writ Refused July 3, 1978.

      Griffing & Scott by George F. Griffing, and H. James Lossin, Sr., Jonesville, for plaintiffs-appellants.
    William G. Avery, Asst. Dist. Atty., Har-risonburg, for defendant-appellee.
    Before CULPEPPER, FORET and JOHNSON, JJ.
   FORET, Judge.

This is a companion suit to Herman R. White v. Catahoula Parish Police Jury, La. App., 358 So.2d 690, in which a separate judgment is being rendered by us this date. In both suits the plaintiffs, landowners and lessees of property fronting on Black River, sue the Catahoula Parish Police Jury to recover damages resulting from defendant’s unlawful appropriation of a strip of land on which it constructed a new road along the river. The trial court dismissed Bertha J. McPherson’s suit in tort, finding she had granted defendant a servitude, but reserved to her the right to sue in contract, based on a written servitude agreement which she signed. As to the remaining plaintiffs in the McPherson suit, who are owners in indi-visión with her of part of the property, the court dismissed their suit also, but gave no reasons. The court also dismissed the companion suit of Herman R. White, finding the defendant had merely exercised a servitude which it had under LSA-C.C. Article 707, and that White had “tacitly agreed” to the relocation of the road, thereby barring his recovery of compensation or damages. All plaintiffs in both suits appealed.

The substantial issue on appeal is: Is the “taking” authorized by LSA-C.C. Article 707 applicable in this case?

The facts are not seriously in dispute. For decades there had been a public road adjacent to the west bank of Black River in Catahoula Parish. The road varied in width from 15 to 30 feet and curved as it followed the river bank. By the fall of 1975, this gravel road was caving in and dangerous due to the movement of the river. The defendant had the Department of Public Works draw a plan for a new setback road to be a minimum of 200 feet from the top of the river bank to the edge of the road. The jury also hired a “right-of-way” man to obtain written servitude agreements from the landowners affected. Some of the landowners signed these form instruments.

Bertha J. McPherson refused to sign the servitude agreement as prepared by defendant. She had her attorney make some changes and then signed the changed contract on June 28, 1976, and gave it to the defendant’s representative. Essentially, she agreed to grant the servitude only on condition that certain specified requirements are met, including payment of damages to her soybean crop.

Work was begun on the new road in 1976. It was substantially complete by the time these suits were filed respectively in January and March of 1977. The new road is straighter than the old road and is on a 60-foot right-of-way. It is not adjacent to the curving river bank. At some points it is as much as 300 feet from the bank. The Police Jury admitted it made the new road straighter and set it back from the river bank for reasons of safety and economy.

In January of 1977, the Police Jury passed a resolution denying compensation to landowners and lessees for damage to soybean crops caused by construction of the new road. This is what precipitated Mrs. McPherson’s suit.

In March of 1977, after these two suits had been filed, the Police Jury recorded a “Notice of Appropriation” covering all of the land needed for this new road, including that in dispute here.

We first address the question of the applicability of LSA-C.C. Article 707, which reads:

“He who from his title as owner is bound to give a public road on the border of a river or stream, must furnish another without any compensation, if the first be destroyed or carried away.
“And if the road be so injured or inundated by the water, without being carried away, that it becomes impassable, the owner is obliged to give the public a passage on his lands, as near as possible to the public -road, without recompense therefor.”

Plaintiffs-appellants rely on the cases of Hebert v. T. L. James & Co., 224 La. 498, 70 So.2d 102 (1954), and Peart v. State, 125 So.2d 673 (La.App. 3 Cir. 1961), both of which held Article 707 inapplicable. In Hebert, the Department of Highways was attempting to appropriate additional land in order to widen, and not to replace, an existing public roadway. In Peart v. State, supra, the Department of Highways was relocating a public highway, La. Highway No. 5 (now redesignated as State Highway No. 1) which was necessitated by the relocation of a levee along the Red River in Rapides Parish.

In our view, the case at bar is controlled by the Supreme Court case of Hornsby v. State Department of Highways, 241 La. 989, 132 So.2d 871 (1961). In Hornsby, the Supreme Court reversed this Court’s decision which had rendered judgment in favor of the landowner whose property was taken. (See our decision at 125 So.2d 673, 682.) Our decision in Hornsby was rendered as a companion decision with Peart v. State. Writs of certiorari were not applied for in Peart; however writs were applied for in Hornsby, and were granted. In our view, the Supreme Court, in its Hornsby decision, reversed, by inference, our decision in Peart. In Hornsby, the Supreme Court obviously disagreed with the language of Hebert and Peart wherein those cases stated that the landowner is bound to give another public road right-of-way, without compensation, only if such road or passage is incident to the nature, navigable character, or use of the stream, and the landowner is not bound by Article 707 to give a new right-of-way for general road purposes without being compensated therefor. In Hornsby, the Supreme Court stated, 132 So.2d at Page 874:

“According to its plain provision, revised Civil Code Article 707 contemplates the pre-existence of public road servitudes along streams and the roadway’s having been destroyed or rendered impassable by reason of water from such streams. Moreover, the article appears to have general application to all lands owing such servitudes regardless of the manner in which they were originally created. From the record before us, we are unable to determine how the pre-existing servitude involved here . . . was established. It might well be that it was one of those roadways which existed ‘from time immemorial’. Nevertheless, its preexistence along Red River and on Mrs. Hornsby’s property is conceded; and, this being true, she was obliged under the provisions of revised Civil Code Article 707 to furnish another servitude on her lands for the replacing public road.”

The dissenting opinion in Hornsby seems to indicate quite clearly that the facts of that case are strikingly similar to the case at bar, except that in Hornsby the road was rendered impassable following the relocation of the levee, whereas in the instant case the road was rendered impassable by those very facts given in Article 707 “destroyed or carried away” . . . “if the road be so injured or inundated . that it becomes impassable”. The dissenting opinion continued to note that in Horns-by the river’s edge was approximately eleven hundred feet at its nearest point from the highway right-of-way, and that the distance from the toe of the levee to the highway right-of-way was slightly in excess of two hundred feet. Further, in Hornsby the existing highway right-of-way was widened by approximately thirty-six to fifty-one feet. So Hornsby involved not only the relocation of an existing road, but also a widening of same. The tenor of Justice Summers’ dissent is that if the facts of the case at bar had been present in Hornsby, that he may very well have agreed with the majority. He states, at Page 874, that the circumstances affecting the Hornsby property did not involve a highway “destroyed or carried away”, nor was the road traversing plaintiff’s property “injured or inundated by the water, without being carried away”, which he stated to be essential factual requisites to permit the application of Civil Code Article 707.

The appellants complain that the new road does not follow the banks of the river, and has been straightened considerably. We note that the photographs and the plat of survey introduced do not support appellants’ contention. The photographs are particularly impressive because they show rather clearly that the replacement road, which is set some two hundred feet back from the river bank, clearly follows the curves of the river. We believe that it would have been rather imprudent for the Police Jury to build a replacement road immediately adjacent to the old road. We feel that for us to hold that it was built too far from the old road to be an Article 707 situation, would be to substitute our judgment for that of the Police Jury and the Department of Public Works, who designed the new road, presumably in accordance with good engineering practices, considering the propensities of most of our rivers to erode their banks. The redactors of our Civil Code wisely envisioned this very problem when they adopted Article 707.

Having concluded that the Police Jury legally appropriated the property of the plaintiffs, we need not discuss whether a binding agreement was entered into between Mrs. McPherson and the Police Jury. LSA-C.C. Article 707 gave the Police Jury the right to appropriate plaintiffs’ land for the purposes for which it did. However, we are of the opinion that the fact that the Police Jury had the power to appropriate plaintiffs’ land does not mean that the landowners cannot recover for special damages which they may have sustained as a result of the appropriation. For example, if fences were destroyed, standing crops were destroyed, other improvements were destroyed, or expenses incurred for relocation of improvements on the land taken, certainly the landowners should be entitled to recover for these or similar damages. We do not construe Article 707 to mean that whatever damage the landowner may sustain, he is absolutely precluded from recovery therefor.

In the interest of justice, we prefer to remand these eases to the district court for the introduction of additional evidence for determination by the trial judge of any special damages to which each of the plaintiffs is entitled.

Costs of this appeal are assessed one-half against the Police Jury, and one-half against the plaintiffs, collectively. Assessment of costs in the district court must await a final judgment there.

AFFIRMED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge,

dissenting.

I disagree with the majority as to the construction of LSA-C.C. Articles 665 and 707. In the case of Hebert v. T. L. James & Company, 224 La. 498, 70 So.2d 102 (1954), the facts were that the plaintiff owned land fronting on Bayou Terrebonne, a navigable stream. A graveled road, approximately 30 feet in width, had existed parallel and close to the bank of this stream since time immemorial. The State contracted with the defendant, T. L. James & Company, to widen this road to 75 feet and pave it with concrete. Plaintiffs filed suit to enjoin the construction of the widened road. The issue was whether the State had a servitude for the new highway. Our Supreme Court reviewed exhaustively the sources and history of Civil Code Articles 665 and 707, and concluded that the landowners did not owe a free servitude for the widening of the existing road under either Article 665 or Article 707. The rationale of the Hebert decision is that the servitude owed under these articles is only for a road which is “incident to the nature, navigable character, or use of the stream”, and not to serve the public for general highway purposes. It is my view that under this rule enunciated in Hebert, the new road constructed across plaintiff’s property in the present case is not incidental to the “nature, navigable character or use of the stream”. As the majority states in its opinion, the new road is straight and is located not less than 200 feet, and in some places, as much as 300 feet from the bank of the river. The testimony is that the new road was set back from the river bank for reasons of safety and economy, not for any reason having to do with the nature, navigable character or use of the stream. The new road is simply for use by the public generally as a highway.

The majority relies on Hornsby v. State, Department of Highways, 241 La. 989, 132 So.2d 871 (1961). Although it is difficult to determine the facts from the majority opinion in Hornsby, a reading of the dissenting opinion and the decision of the Court of Appeal in the companion case of Peart v. State, 125 So.2d 673 (La.App. 3rd Cir. 1960), indicates that due to erosion of the bank of Red River the levee was set back to a new location. There had been an old road running approximately parallel to the old levee. When the levee was set back, a new road was constructed generally along the new levee and a distance of about 200 feet from the toe of the new levee. The State claimed a servitude for the new road under Articles 665 and 707. The district court and the Court of Appeal held that the Hornsbys did not owe such a free servitude. The Supreme Court reversed.

Although I have difficulty, as did the dissenting justice in Hornsby, reconciling the majority decision in Hornsby with the decision in Hebert and the previous jurisprudence discussed in Hebert, I conclude that, in any event, there is one fact which clearly distinguishes Hornsby from the present matter. In the Hornsby case, the majority states “it has not been contended here that the new roadway exceeds in size that of the old one.” In the present case, unlike Hornsby, the old road along the river bank was no more than 30 feet in width at any place, but the new servitude is 60 feet in width. Thus, under the majority opinion in the present case, the police jury will acquire a servitude for the new road twice the width of the old servitude, without paying the landowner any amount whatsoever. I cannot believe such a result is intended under Civil Code Articles 665 and 707.

It is noteworthy that in the present case the police jury did not even cite the Horns-by case. The plaintiffs cited Hornsby for the rule that the new road which the landowner must give under Article 707 cannot be wider or more onerous than the servitude which previously existed. Of course, I agree the Hornsby case is authority for this rule.

For the reasons assigned, I respectfully dissent.


author: FORET, Judge.

text:
    Herman R. WHITE, Plaintiff-Appellant, v. CATAHOULA PARISH POLICE JURY, Defendant-Appellee.
    No. 6370.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Rehearing Denied May 24, 1978.

    Griffing & Scott by George E. Griffing and H. James Lossin, Sr., Jonesville, for plaintiff-appellant.
    William G. Avery, Asst. Dist. Atty., Har-risonburg, for defendant-appellee.
    Before CULPEPPER, FORET and JOHNSON, JJ.

       Culpepper, J., voted for rehearing.

   FORET, Judge.

For the reasons stated in the companion case of Bertha J. McPherson et al. v. Catahoula Parish Police Jury, 358 So.2d 685 (La.App. 3 Cir., 1978 — Our Docket No. 6369), in which a separate decision has been rendered by us on this date, the judgment appealed herein is affirmed in part and remanded to the trial court for further proceedings.

Costs of this appeal are assessed one-half against the Police Jury, and one-half against the plaintiffs, collectively. Assessment of costs in the district court must await a final judgment there.

AFFIRMED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

CULPEPPER, J., dissents for the reasons stated in his dissent in the companion case.