author: DIXON, J.,

text:
    Eric W. PARKS v. WINNFIELD LIFE INS. CO. et al.
    No. 58704.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: Winnfield Life Insurance Co., et al. applying for certiorari, or writ of review, to the Court of Appeal, 336 So.2d 1021, Third Circuit, Parish of Natchitoches.

Writ refused. Since the court of appeal overruled the exception of no cause of action and remanded the case for further proceedings, the judgment is not final.

DIXON, J.,

concurs in the denial, being of the opinion that the ruling of the court of appeal was correct.


source: Caselaw Access Project

author: SUMMERS, J.,

license: Public Domain

text:
    STATE of Louisiana v. David H. SEELING.
    No. 58698.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: State of Louisiana, applying for writ of certiorari,' mandamus and prohibition.

Writ denied. We find no abuse of discretion of the trial judge on the showing made.

SANDERS, C. J., is of the opinion that a writ should be granted.

SUMMERS, J.,

there is no showing that applicant has been deprived of any relevant portion of the proceedings before the grand jury. The writ should be granted.


author: SUMMERS, J., TATE, J., CALOGERO, J.,

text:
    STATE of Louisiana v. Isaac PIERRE, Jr.
    No. 58697.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
    Summers, J., concurred in the denial with statement.
    Tate, J., concurred in the denial in a statement in which Dixon, J., joined.
    Calogero, J., dissented and filed statement in which Dennis, J., joined.
   In re: Isaac Pierre, Jr., applying for remedial writ.

Writ denied. In view of the minute entry, the recorded statement of the trial judge, and disclosure of plea bargain, the showing made is insufficient to warrant the exercise of our supervisory jurisdiction.

SUMMERS, J.,

in addition to the reasons stated for denial of this writ, I am of the opinion the proper rule in these cases is stated in McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973).

TATE, J.,

concurring in denial: Under State ex rel Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971) a contemporaneous recording should be made (even if not transcribed at the time) of the Boykin examination at the time of the plea, in order to avoid an evidentiary hearing if the volun-tariness of the plea is subsequently contested. However, under the exceptional circumstances here presented, including the finding of the trial judge, I concur in the denial of writs.

DIXON, J., concurs in the denial, subscribing to reasons stated by TATE, J.

CALOGERO, J.,

dissents, is of the opinion that minimally applicant is entitled to have the state at a re-directed evidentiary hearing attempt to produce (“spread up on the record”) proof of an adequate “Boykinization”.

DENNIS, J., is of the opinion the writ should be granted for the limited purpose as described by CALOGERO, J.


text:
    Lewis A. GIRAUD et al. v. LOUISIANA TAX COMMISSION et al.
    No. 58760.
    Supreme Court of Louisiana.
    Dec. 1, 1976.
   In re: Lewis A. Giraud, Mrs. Elvira Louise Weiner Giraud and Mrs. Corinne Rotge Panquerne, et al., applying for Certiorari, or writ of review, to the Court of Appeal, 336 So.2d 1037, Fourth Circuit, Parish of Orleans.

Writ denied. No error of law.

SUMMERS, J.,

is of the opinion the writ should be granted, agreeing with the dissenting opinion in the Court of Appeal (336 So.2d 1037) and the reasons assigned by the trial judge.


text:
    Jonathan C. HARRIS et al. v. The TRUSTEES OF the LOUISIANA PUBLIC FACILITIES AUTHORITY, and Public Facilities Corporation, et al.
    No. 58925.
    Supreme Court of Louisiana.
    Dec. 2, 1976.
   In Re: The Trustees of the Louisiana Public Facilities Authority, Public Facilities Authority, Public Facilities Corporation, et al, applying for supervisory writs and for order staying proceedings.

Not considered. Relator has not first applied to the Court of Appeal for relief.

DENNIS, J., is of the opinion the writ should be granted.


text:
    STATE of Louisiana v. Melvin CROCHET.
    No. 58923.
    Supreme Court of Louisiana.
    Dec. 2, 1976.
   In re: Melvin Crochet applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ denied. On the showing made, exercise of our supervisory jurisdiction is not warranted.


text:
    In re REBAR STEEL ANTITRUST INVESTIGATION.
    No. 58883.
    Supreme Court of Louisiana.
    Nov. 23, 1976.
   In re: Charles F. Jones, A. A. Boudous-quie, Jr., Richard M. Johnson and John W. Bean, applying for writ of review and a stay order.

Granted.

’ The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Rudolph Becker, III Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme court of Louisiana, on or before the 1st day of December, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 26th day of January, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Stanley EMERSON and Jules Duperon.
    No. 58518.
    Supreme Court of Louisiana.
    Nov. 24, 1976.
   In re: State of Louisiana applying for writ of certiorari.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Donovan W. Parker, Judge of the 19th Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 15th day of December, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 4th day of March, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    L. P. WHITE v. DeWayne C. MORRIS et al.
    No. 58692.
    Supreme Court of Louisiana.
    Nov. 24, 1976.
   In re: DeWayne C. Morris and Hartford Accident and Indemnity Co., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Rapides, 337 So.2d 237.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Peggy SCHOLLE.
    No. 58670.
    Supreme Court of Louisiana.
    Nov. 24, 1976.
   In re: Peggy Scholle applying for writs of certiorari, mandamus and prohibition.

Denied. There is no error in the ruling complained of.


text:
    Milton P. MASINTER v. M. Cordill GRUNEWALD.
    No. 58684.
    Supreme Court of Louisiana.
    Nov. 24, 1976.
   In re: Milton P. Masinter applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 336 So.2d 876.

Writ refused. On the facts found, there is no error of law.


text:
    Edgar BANKSTON v. MERIT ELECTRIC, INC. and Northern Assurance Company of America.
    No. 58685.
    Supreme Court of Louisiana.
    Nov. 24, 1976.
   In re: Edgar Bankston applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 336 So.2d 875.

Writs denied. On the facts found by the Court of Appeal, the result is correct.


text:
    CITY OF NEW ORLEANS v. Stanley DENNIS and Wayne Balom.
    No. 58890.
    Supreme Court of Louisiana.
    Nov. 24, 1976.
   In re: Stanley Dennis and Wayne Balom applying for Supervisory Writs.

Writ denied. Defense counsel having notified the court that the Criminal District Court has granted the relief sought, this application is now moot.


text:
    STATE of Louisiana v. Donald K. ROBINSON.
    No. 58902.
    Supreme Court of Louisiana.
    Nov. 29, 1976.
   In re: Donald K. Robinson applying for writs of certiorari, prohibition and mandamus.

Writ denied. Because applicant’s trial is definitely set for Dec. 6, 1976 and because he has an adequate remedy on appeal in the event of conviction with respect to the alleged errors, this application is denied.


text:
    CITY OF MONROE v. Gerry W. FRENCH.
    No. 58728.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: Gerry W. French, applying for certiorari.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Elvis C. Stout, Judge of the City Court of the City of Monroe, for the Parish of Ouachita, to transmit to the Supreme Court of Louisiana, on or before the 15th day of December, 1976, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 4th day of March, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Johnny W. HINES v. CLERK OF COURT 19th JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE.
    No. 58849.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: Johnny W. Hines applying for Writ of Habeas Corpus.

Writ granted. It is ordered that Johnny W. Hines be furnished a transcript of the evidence at his habeas corpus hearing.


text:
    In re Roland R. SELENBERG.
    No. 58696.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: Roland R. Selenberg applying for Reinstatement.

Application denied. The showing made does not warrant reinstatement at this time.


text:
    STATE of Louisiana ex rel. Eddie SIMMONS v. Ross MAGGIO, Jr., Warden Louisiana State Penitentiary.
    No. 58718.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: Eddie Simmons, applying for writ of habeas corpus.

Writ denied. Minute entries and transcripts of colloquy at time of guilty pleas show that relator's guilty pleas were freely and voluntarily made after knowingly and intelligently waiving his constitutional rights.


text:
    STATE of Louisiana v. Joseph L. DODD.
    No. 58719.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: Joseph L. Dodd applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ refused. There is no merit in application.


text:
    STATE of Louisiana v. John Peter KELLER.
    No. 58720.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: John Peter Keller applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. There is no merit to this application.


text:
    Lillian RACHAL v. BROOKSHIRE GROCERY STORES, INC. (Brookshire Grocery Co.).
    No. 58722.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: Lillian Rachal applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 336 So.2d 1014.

Application denied. On the facts found by the courts below, there is no error in the court of appeal’s judgment.


text:
    STATE of Louisiana v. John HARDY.
    No. 58731.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: John Hardy applying for writ of review.

Writ denied: No error in the trial court’s ruling of September 13, 1976. See also evidentiary hearing of February 23, 1976.


text:
    CITY OF BATON ROUGE v. Artney TODD, Jr.
    No. 58741.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: Artney Todd, Jr. apply for writ of Certiorari.

Writ refused. No merit in the application.


text:
    STATE of Louisiana ex rel. Michael BICKHAM v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 58755.
    Supreme Court of Louisiana.
    Nov. 30, 1976.
   In re: Michael Bickham applying for Writ of Habeas Corpus, Mandamus, Certio-rari and Prohibition.

Writ denied. Application is moot inasmuch as appeal has been lodged in this court on Nov. 18, 1976, # 58,879. Defendant’s counsel is ordered to file assignment of errors within 20 days of this date.


text:
    STATE of Louisiana ex rel. Charles Donald BYRD, a/k/a Charles Handcock v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57116.
    Supreme Court of Louisiana.
    Dec. 2, 1976.
   In re: Charles Donald Byrd a/k/a Charles Handcock applying for remedial writs.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable John S. Pickett, Judge of the Eleventh Judicial District, Court for the Parish of DeSoto, to transmit to the Supreme Court of Louisiana, on or before the-day of-, 19_, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 17th day of December, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Arthur M. DAVIS.
    No. 58914.
    Supreme Court of Louisiana.
    Dec. 2, 1976.
   In re: Arthur M. Davis applying for Writs of Certiorari, Prohibition and Mandamus.

Writ denied. The ruling of the trial judge is correct.


text:
    STATE of Louisiana v. John OLINDE.
    No. 58928.
    Supreme Court of Louisiana.
    Dec. 2, 1976.
   In re: State of Louisiana, applying for writs of certiorari, mandamus and prohibition.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


author: COVINGTON, Judge:

text:
    Ronald A. LANDRY, Jr. v. Linda Hays LANDRY.
    No. 10851.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Feb. 1, 1977.
    Frank J. Gremillion, Baton Rouge, for Linda Hays Landry.
    Ralph Brewer, Baton Rouge, for Ronald A. Landry.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This case is before us on a devolutive appeal from a judgment decreeing the custody of two minor children, Ronald A. Landry, III, and Joel Ray Landry, born of the marriage between appellant, Ronald A. Landry, Jr., and Linda Hays Landry. The trial court awarded the children to their mother, the appellee. We affirm.

Honorable E. Donald Moseley, Judge, Family Court, for the Parish of East Baton Route, presided and we accept and approvingly adopt his finding of facts as quoted from his Reasons for Judgment:

“The parties were married on September 27, 1969, in East Baton Rouge Parish, where they established their matrimonial domicile. Mrs. Landry was eighteen years old at that time. In November of 1973 Mrs. Landry was admitted to the hospital for emotional problems. She was released after a brief period of time. However, the parties were having marital problems, and they separated in January of 1974. Mr. Landry left the family home at that time and began residing with his parents. “On April 3, 1974 Mrs. Landry called Mr. Landry and advised him that she was unable to care for the children because of her mental depression, and Mr. Landry thereupon assumed custody. On April 23, 1974 she called him in an effort to effect a reconciliation. She advised him at that time that it was necessary for her to again enter the hospital. Mr. Landry was opposed to this, and advised her at that time that if she entered the hospital it would end their marriage. Mrs. Landry entered the hospital on April 24,1974, and was discharged on May 8,1974. Mrs. Landry testified that she left the hospital prematurely because her husband would not pay the bills, and she had not heard from him. Upon her discharge Mrs. Landry initially went to an apartment rented by one David Murray. Her husband immediately commenced a surveillance of the apartment, and obtained sufficient evidence to warrant the filing of a petition for divorce on the grounds of adultery. This suit was filed on May 15, 1974, and a default judgment was obtained on June 11, 1974.
“Mrs. Landry thereafter moved into her paramour’s residence, and lived with him until September or October of 1974. In July she began working, and is still gainfully employed. After leaving her paramour’s home she initially resided with her sister, and is now residing in an apartment with her grandmother. She testified that she had exercised visitation rights with her children every weekend since September of 1974; that she is no longer mentally depressed or sick; that her affair is over, and that if she obtained custody her grandmother will live with her and help care for the children.”

After a full hearing, the judge allowed a specific time within which counsel were to file memoranda. The minutes for December 1,1975, reflect that the briefs had been filed and that the matter was submitted to the court for adjudication. The memoran-da were not included in the record filed in this court. The trial judge rendered a judgment in favor of the mother, Linda Hays Landry, and against the father, Ronald A. Landry, Jr. In his written Reasons for Judgment, the trial Judge stated:

“The continuous change of baby-sitters, housekeepers, and nursemaids which has been made has not created a stable environment for these children. Although Mr. Landry is sincerely devoted to his children, he cannot give these young children the care and attention of a mother. Mrs. Landry, although guilty of past indiscretions, has reformed her life, and she and her family are prepared to give these children the stable environment which they require. This Court is also of the opinion that the welfare and interest of these small children would best be served by granting custody to the mother, who is prepared now to provide a good, moral home for them, subject to reasonable rights of visitations by the father.”

The father, Ronald Landry, filed a motion for a new trial on December 17, 1975, which motion was denied by judgment dated January 15, 1976.

In his brief, Ronald Landry, hereinafter referred to as appellant, assigns the following specification of errors to the ruling of the trial court:

1. The trial court erred in refusing to sustain appellant’s exception of no cause of action.
2. The trial court erred in granting a change of custody.

The appellant filed a peremptory exception, stating that the petition of Linda Hays Landry for change of custody alleged absolutely no grounds upon which a change of custody could be granted, and that it alleged no change of circumstances or facts to support the “double burden” necessary to change custody. The record shows that no hearing was held on the motion, but it was discussed by the trial judge and counsel in Chambers prior to beginning of this trial. At the outset of the trial, the following colloquy took place between the trial judge and appellant’s counsel: .

“THE COURT: Have you filed your exception of no cause—
MR. BREWER: Yes sir, the exception was filed sometime ago, and I understand from the Court — We just got out of a pre-trial conference with the Court, and the is contending, and I suppose does overrule the exception.
THE COURT: Yes, sir. Let the record show that the exception of no cause of action is overruled. The Court believes as though an exception of vagueness could have been made available and perhpas (sic) would would have been applicable but that the petition otherwise show (sic) a cause of action.”

In considering an exception of no cause of action, all well-pleaded facts in the petition and attached documents must be accepted as true and any doubts must be resolved -in favor of the sufficiency of the pleading to state a cause of action. Therefore, the exception must be overruled unless the allegations affirmatively establish that under no facts admissible under the allegations of the petition does the plaintiff state a cause of action. Guillory v. Nicklos Oil & Gas Company, 315 So.2d 878 (La.App. 3 Cir. 1975).

The petition of the appellee states that “Linda Hays Landry now shows that she is a fit and proper mother of the said minor children, and desires and is entitled to the permanent care, custody and control of said children.” She further alleged that she is able to provide a proper home, and that it is in the best interest and welfare of the children that she have such custody. The trial judge was correct in overruling the exception.

The second specification is directed to the change of custody. Appellant contends that the “double burden” of proof is applicable herein because the father presently has the care, custody and control of the minor children and received same by the decree rendered on June 11, 1974. The trial judge said in his written Reasons for Judgment that:

“Assuming that the ‘double burden’ is applicable, this Court is of the opinion that this burden has been met by the plaintiff-in-rule.”

The trial court has broad discretion in domestic matters, especially where the custody of children is involved. Therefore, unless there is a clear abuse of such discretion, the judgment will not be set aside; Lambert v. Lambert, 286 So.2d 390 (La. App. 1 Cir. 1973).

The question now is whether the trial judge could, from all the facts, evidence and law presented, award custody to the mother without abusing his discretion. The record is replete with testimony, admitted by the appellant, that he has hired and discharged numerous baby-sitters, housekeepers, and nursemaids. This has not created a stable environment for these children, who were five and four years old on the date of the trial court’s judgment. A fair reading of all the testimony adduced shows that Mr. Landry loves and provided the material necessities for his sons. However, we are not prepared to say that the trial judge abused his discretion in awarding custody of them to their mother. In absence of abuse of the discretion of the trier of fact, we will affirm his decision.

Appellant is cast for all costs.

AFFIRMED.


author: SARTAIN, Judge. CHIASSON, Judge

text:
    Margaret S. STAGG et al., Plaintiffs-Appellants, v. CITY PRODUCTS CORPORATION et al., Defendants-Appellees.
    No. 10864.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Feb. 1, 1977.

      Pete Adams, Robert G. Szabo, L. Todd Gremillion, Baton Rouge, for plaintiffs-appellants.
    William Luther Wilson, Baton Rouge, for Ozone Pet Supply, Inc., and The Travelers Insurance Company, defendants-appellees.
    John B. Noland, Baton Rouge, for City Products Corporation and Continental Ins. Co., defendants-appellees.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

Mrs. Margaret S. Stagg was injured when she struck and fell over a flatbed dolly while shopping at a T G & Y Store in Baton Rouge, Louisiana, on November 5, 1974. She is joined in this action by her husband. Their respective claims for personal injuries and special damages were rejected by the trial court. We affirm.

The defendants are City Products Corporation, the owner and operator of T G & Y Family Centers, Ozone Pet Supply Company, Inc., a furnisher of certain pet supplies to the store, and their respective liability insurers.

The evidence established that the store is laid out with an aisle traversing its width across the front and rear walls. Between these main aisleways there are merchandise counters running parallel to one another from the front to the rear of the store. Along the rear wall are various pet supplies which are displayed on shelves and brackets mounted on the wall. Shortly before the accident a representative of Ozone Pet Supply had made a delivery of supplies. In doing so, he had used the flatbed dolly and had placed his supplies in the rear aisleway at the base of the shelves upon which they were to be displayed. A representative of the store would check the items in, price them, and put them on the display shelves. He could not remember whether he returned the dolly to the storage area after he had used it. He had departed from the store anywhere from thirty minutes to an hour before Mrs. Stagg fell.

Mrs. Virginia B. Jones was an employee at T G & Y. At the time of and just prior to the accident she was placing supplies from Ozone Pet on the display shelves. She had previously checked them in from that company. She recalled its representative making two trips and using the dolly on at least the first trip. She could not recall whether the dolly was used on the second trip. Nor does she recall the dolly’s presence in the aisle prior to the accident. She admitted that her instructions were to take the dolly back to the storage area when it was not in use “so customers would not fall on it.” She recalled Mrs. Stagg coming up to her and asking where the dog collars were located. She directed Mrs. Stagg to the collars which were some fourteen feet down the aisle from her. Several minutes later she heard Mrs. Stagg call out and looked around to see that she had fallen. On this occasion, she noticed that the dolly was about two to three feet from the collars. No one else was present.

Mrs. Stagg testified that when she arrived at the store she proceeded down the far right aisle to the rear. There she encountered Mrs. Jones and asked her where the collars were. The latter responded “over there.” She then walked down the aisle some fifteen to sixteen feet to the collar display. At first she couldn’t find the size she desired but with further search she did. She estimated that she stood there examining various dog collars for a period lasting from five to ten minutes. Having selected the collar of her choice she turned to retrace her steps and explained, “as I stepped out into the aisle I was knocked down hard.”

There can be no question about the fact that Mrs. Stagg verily believes that the dolly or cart was actually pushed into her and that it was not in the aisle when she first passed its location. She so alleged in her petition, reiterated it in her pretrial order, and affirmed it in her testimony.

“Q. As you went down to the dog collars, did you notice the cart?
A. There was no cart — I didn’t see one; I didn’t see one at all.
Q. All right.
A. In fact, if there had of been a cart, I would have had difficulty getting around it.
Q. Okay.
A. Because I was going down the middle of the aisle; I walked down the center of the aisle myself, and if there had been a cart I would have had to gone around it to have proceeded on down the aisle.”
* * * * * *
“Q. If the pushcart had been there, would you have seen it?
A. I think I would because the thing was pretty wide; you know, it wasn’t a little narrow cart. You couldn’t help but see a thing that large, I would think.”
* * * * * 5j*
“Q. Okay. I take it from this fact, that is, you saw the pushcart right after your accident, that you deduced that you tripped over the cart?
A. Well, I didn’t deduce that I tripped over it; I felt like it had been pushed into me because it was a jolt, it wasn’t like — like if you trip over a chair or something, you could kind of brace yourself or hold onto something. I was just — I struck hard and if you trip over something you’re not struck, you — you’re—I don’t know how to discribe it—
Q. Your position then—
A. —it’s different.
Q. —is that this cart was being pushed by someone, or at least was moving into you at the time?
A. Yes. I felt that. That was my feeling. I didn’t see it; I felt that.”

Photographs offered in evidence together with the stipulation as to the size of the dolly conclusively show that it is a rather large object. The bed, which rests on four wheels, nine and one-half inches from the floor, measures four feet in length by two feet three inches in width. The handle at one end is three feet one and one-half inches in height. The aisle in which the dolly was allowed to remain is five feet five inches wide. Thus, the dolly itself consumed almost one-half of the area of the aisle.

On these facts the trial court, in its oral reasons for judgment, stated:

“Getting to the question of how the accident happened, it doesn’t really seem to be important to the Court whether the cart was there or not there at the time Mrs. Stagg first walked up to the counter where the dog collars were located. The thing that does impress this Court is the fact that we have a rather large contrivance, two feet three inches wide, four feet long, and one end of it containing a handle with a great deal of metal which extends up past a person’s waist. Certainly, this type thing, if one is looking, and as admitted by the plaintiff, can very easily be seen. So, we have to ask this question. Even assuming negligence on the part of TG&Y and its insurer, what happened? Why didn’t Mrs. Stagg see this cart or dolly as she turned around to walk out? She testified she took one or two steps, not more than two steps I believe she said; and, as the other evidence indicates, she struck or was struck by the handle of the dolly. It’s completely mysterious as to why Mrs. Stagg, had she been looking or keeping any kind of a reasonable lookout, would not have seen the dolly there.
“I realize that the lady has been hurt, she has a residual disability and it’s been very painful, very trying for her. However, we don’t think the evidence preponderates to establish liability on the part of TG&Y and its insurer. And, even assuming that it did, we would have to say that Mrs. Stagg was guilty of contributory negligence in not maintaining a proper lookout, in not watching where she was walking. It’s inconceivable to me that someone can walk into the handle end of this dolly, which we think she did, and not first see it. She may have been in a hurry. I don’t know what her situation was at the particular time, but the law is not to the effect that just because it was there and just because it was owned by TG&Y they are liable. There is no proof that any employee of TG&Y put it in motion or struck Mrs. Stagg with it.
“I think a logical deduction would be that the cart was there when Mrs. Stagg walked up to the dog collars. I think it’s logical to deduce that no one shoved it into her. She saw or should have seen the handle. Had there been a human at the other end of the cart pushing it, surely she would have gotten a glimpse of the person. I don’t think anybody pushed it. I think Mrs. Stagg turned around and walked into the cart.”

We find negligence on the part of the defendant, City Products. We believe that its employees were negligent in leaving the dolly in the aisle at a time when it was serving no useful purpose and unattended. Obstructions in the aisles create a hazard to a customer’s safety. Williams v. Liberty Stores, 148 La. 450, 87 So. 233 (1921); and Paxton v. Ballard, La., 289 So.2d 85 (1974).

However, we do agree with the trial judge in his conclusion that had Mrs. Stagg maintained “any kind of reasonable lookout” she could and should have seen such a large “contrivance.” She was retracing the same path she had used upon entering the store. She collided with the handle of the dolly which consists of a large metal crossbar supported by uprights and three additional metal crossbars, all of which reach a height slightly in excess of three feet. She did not stumble or fall over a low object such as may be classified as a trap. Paxton v. Ballard, above; and Robnett v. Great American Insurance Co. of New York, 187 So.2d 152 (2nd La.App., 1966, writs refused).

We wish to emphasize that our holding of contributory negligence on the part of Mrs. Stagg is based entirely on the fact that she was not turning a corner or passing the dolly for the first time. To the contrary, she had previously passed this large object just minutes before in the same aisle and in the immediate vicinity of the area in which she was selecting her merchandise.

With respect to negligence on the part of Ozone Pet Supply, Inc., plaintiffs’ brief contains no assignment of error nor is any argument advanced relative to the trial judge’s dismissal of their claim against this defendant.

For these reasons, the judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.

CHIASSON, J., dissents and assigns reasons.

CHIASSON, Judge

(dissenting).

The majority of the Court in this case found negligence on the part of the defendants. With this finding I concur. However, I must respectfully dissent from that portion of the opinion of the majority which finds Mrs. Stagg contributorily negligent.

The Trial Court found, and the majority of this Court agreed, that Mrs. Stagg’s injuries occurred when she collided with the handle of the flat-bed cart. An examination of the evidence indicates that this finding is manifestly erroneous.

At the time of the accident the cart was located between Mrs. Stagg and Mrs. Jones with the long (4') axis of the cart parallel to the side of the aisle. Mrs. Jones testified (T-84) that the handle was at the end of the cart nearest to herself. Mrs. Jones’ testimony is supported by her statement in her deposition (Joint-5, pg. 32) and the statements of John Earl Thompson, manager of the store, in his deposition. (Joint-7, pg. 15 and Exhibit 2). There is absolutely no evidence in the record which places the end of the cart with the handle nearest Mrs. Stagg.

The evidence also establishes that after her fall, Mrs. Stagg lay with her head toward the handle of the cart and her feet away. (T-85; T-163; Joint-7, pg. 8, 15, 26, Exhibit 2). Had Mrs. Stagg’s fall resulted from a collision with the handle her body would have come to rest in a different position. Mrs. Stagg could have landed the way she did only if she tripped over the end of the cart without the handle.

The conclusion that Mrs. Stagg tripped over the end of the cart without the handle is supported by the pattern of injury to her body. She had bruises on her shins eight inches to ten inches above the floor. (T-154). The top of the cart bed is nine and one-half inches from the floor. (Joint-4). Mrs. Stagg’s other injuries were to her face, left arm, shoulder and hand. (T-12). Such injuries would not result from walking into the handle of the cart; they would result only if she fell and struck the handle or bed of the cart.

It should also be noted that the handle of the cart is over three feet high and at the top curves away from the bed of the cart. (Joint-4, P-4). An obstacle nine and one-half inches high is much more likely to trip someone than an obstacle three feet high.

The only evidence which might possibly support the conclusion that Mrs. Stagg walked into the handle is her testimony that the first blow she remembered was one to her arm. (T-215, T.G. & Y.-l, pg. 36). However, since the blow was above her elbow (T-215) it could only have occurred after she had started to fall. An examination of the testimony indicates that Mrs. Stagg did not know what part of the cart caused her to fall. (T.G. & Y.-l, pg. 57).

The accident in the present case occurred when Mrs. Stagg, who was examining merchandise on the shelf, turned, took one or two steps and tripped over the cart which had been left in the aisle. As has been shown above Mrs. Stagg did not collide with the handle of the cart. Rather, she tripped over an obstacle nine and one-half inches high and located one to three feet from where she was examining merchandise. The handle located five to seven feet from her would not be notice to her that there was an obstacle at her feet, nine and one-half inches from the floor. I am of the opinion that the flat bed in the aisle created a trap. Therefore, the holdings in Paxton v. Ballard, La., 289 So. 2d 85 (1974) and Robnett v. Great American Insurance Co. of New York, 187 So.2d 152 (2nd La.App. 1966), cited by the majority, apply in this ease and Mrs. Stagg was not contributorily negligent.

For these reasons, I respectfully dissent.


author: EDWARDS, Judge.

text:
    Barronece PENDARVIS et al. v. CONTINENTAL SERVICE LIFE AND HEALTH INSURANCE COMPANY.
    No. 10867.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    William F. Kline, Jr., Clinton, Edward C. Seghers, Seale, Smith & Phelps, Jimmie R. Major, Clifton 0. Bincham, Baton Rouge, for plaintiffs-appellants.
    Richard B. Crowell, William B. Owens, Crowell, Owens & Tudor, Alexandria, for defendant-appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

This is an action on a life insurance policy issued in connection with a loan made by Eddie R. Pendarvis with Guaranty Bank and Trust Company of Zachary. The policy was issued in March, 1973, and Pendarvis died of acute myocardial infarction in June, 1973. Defendant-insurer refused payment of the proceeds and returned the premium, claiming that Pendarvis knowingly made false and material misrepresentations in the policy application. The trial court ruled in favor of the insurer, and plaintiffs (Guaranty Bank and Pendarvis’ widow, as their interests appear) now take this appeal.

FACTS

In order to purchase a cycle shop in Clinton, Louisiana, Pendarvis applied for a loan at Guaranty Bank. The bank required credit life insurance, which Pendarvis obtained through Continental Service Life and Health Insurance Company. In connection with the application, Pendarvis was examined by Dr. R. K. Munson of Clinton. Pertinent are the following questions from Part Two of the application asked of Pen-darvis by Dr. Munson:

No. 2 — Have you ever had or been told you had high or low blood pressure or disease of the heart or circulatory system?
No. 13 — Do you or have you ever been advised to have surgical operation, x-ray or radium treatments, blood test, x-ray electrocardiograph, or Basal metabolism?
No. 16 — Are you in good health and free from impairment?
No. 17 — When were you attended by a physician or practitioner? Details?

Pendarvis answered “No” to questions 2 and 13 and “Yes” to question 16. He answered to question 17 that he was treated in 1971 for obesity by the examiner, Dr. Munson.

The record discloses the following additional information concerning Pendarvis’ medical history:

In November, 1971 he saw Dr. Toler; his complaints were that he was overweight and suffering pain in the chest. Several tests were run, including an electrocardiogram (EKG). Dr. Toler prescribed a 1500 calorie diet.

In December, 1972, Pendarvis saw Dr. John Piker, who practiced with Dr. Toler, and related complaints of shortness of breath and pain in the chest. Dr. Piker had an EKG taken on him. He testified that he compared this EKG with the earlier one taken by Dr. Toler and found marked changes: the earlier was suggestive of myocardial disease while the later was inconclusive. Dr. Piker was certain that he discussed with Pendarvis these EKG’s and that he mentioned to him that there were changes apparent therein. He did not, however, indicate to Pendarvis whether one was better than the other. Further, he told Pendarvis that, if his complaints persisted, he needed to consult a cardiologist. Finally, Dr. Piker prescribed for Pendarvis Ni-tro-Bed and nitroglycerine capsules, the former to be taken twice a day, the latter as needed for pain.

Lula Lagrove, the pharmacist at the Clinton Infirmary, testified that, between December 7, 1972 (the date these prescriptions were filled) and May 14, 1973, Pendarvis obtained refills for the Nitro-Bed ten times and for the nitroglycerine three times. The Nitro-Bed prescription called for 60 capsules; the nitroglycerine, 100.

LAW:

Continental’s defense is based on LSA-RS 22:619(B), which provides:

“B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer. Amended and reenacted Acts 1958, No. 125.”

In Gay v. United Benefit Life Insurance Co., 233 La. 226, 96 So.2d 497 (1957) our Supreme Court interpreted this provision to mean that a material misrepresentation by an insured will not defeat recovery of policy proceeds unless such misstatement was made fraudulently or with the intent to deceive; that is, knowing it to be untrue and believing it to be material to the risk (or of such a nature that it would be only reasonable to assume that he must have believed that it was material).

Therefore, the burden is on the defendant-insurer to show that the misrepresentations were material to the risk and made with an intent to deceive. Knight v. Jefferson Standard Life Insurance Co., 205 So.2d 485 (La.App. 1st Cir. 1967).

As Pendarvis’ medical history discloses, the answers given to the four questions of Part Two of the application were false. Further, the medical director for Continental testified that had he known of the medication Pendarvis was taking he would have rejected the application and had he known of the EKG’s, he would have requested them and investigated further. The fair inference is that a true answer to any of the four questions would have disclosed Pendarvis’ heart condition and prompted rejection of his application; therefore, the misstatements were also material.

We turn now to the third requirement, the intent to deceive. Two questions are presented: (1) Did Pendarvis know his answers to be untrue? (2) Were the questions and answers of such a nature that we can reasonably assume that Pendarvis believed them material?

Unquestionably Pendarvis knew his answer to No. 17 was false; he had seen Dr. Piker twice only three months earlier, yet failed to mention that consultation or the visit to Dr. Toler in December, 1971. Whether his answer to No. 13 was consciously false depends on whether he knew that two EKG's had been run on him. Dr. Piker testified that he discussed both EKG’s with Pendarvis. Also, Dr. Munson, Pendar-vis’ family physician, who conducted the insurance examination and asked Pendarvis the questions, opined that Pendarvis could have understood medical terms. He further stated that he thought the average individual would know what an EKG was if he had one run on him relative to Pendar-vis’ educational background, the record reflects that he was a high school graduate, that he was trained in refrigeration, experienced and knowledgable in plumbing and electrical work, and active in business affairs. Considering all of this, we believe Pendarvis must have been aware that EKG tests had been performed on him and, therefore, that his answers were false.

Granted that the answers were false, can we reasonably assume that they were of such a nature that Pendarvis must have believed them material? Although there is some testimony in the record that Pendar-vis may have believed his pain and shortness of breath to be caused by arthritis and obesity (and, if so, could have considered the EKG’s and visits to Drs. Toler and Piker immaterial), the majority of the evidence indicates that Pendarvis must have known that he was suffering some degree of heart disease. Dr. Piker discussed the EKG’s with Pendarvis in December of 1972 and told him that there were changes. He further prescribed medication and warned Pendarvis that, if his problems persisted, he should see a cardiologist. Evidently the problems continued, for Pendarvis renewed the prescriptions several times in a three-month period. Knowing at least all of this, Pendarvis surely must have believed the information withheld was material to the acceptance of the risk of insuring his life.

The decision of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: SARTAIN, Judge. BLANCHE, Judge

text:
    Michael DAVIS, Plaintiff-Appellant, v. Robert MARIE, Defendant-Appellee, State Farm Fire & Casualty Co., Defendant-Third-Party, Defendant and Appellee.
    No. 10883.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Jan. 14, 1977.
    Alvin J. Bordelon, Jr., and Ronald Favre, New Orleans, for plaintiff-appellant.
    Maurice P. Mathieu, Houma, for defendant-appellee.
    Larry P. Boudreaux, Thibodaux, for third-party defendant-appellee, State Farm Fire & Cas. Co.
    Before SARTAIN, BLANCHE and LOT-TINGER, JJ.
   SARTAIN, Judge.

This is a suit for damages for personal injuries suffered by Michael Davis when he was shot by Robert Marie. Also made defendant was State Farm Fire and Casualty Company, which denied coverage. Defendant answered denying liability and alleging that the altercation in which plaintiff was injured was provoked by him. Defendant further reconvened for injuries suffered by himself and his minor son, Ricky Marie, as a result of alleged attacks on them by the plaintiff. Mr. Marie also third partied State Farm, asking judgment against it for any damages which he might be condemned to pay.

After trial on the merits, judgment was rendered in favor of defendants, Robert Marie and State Farm, dismissing plaintiff’s suit. There was further judgment on the reconventional demand in favor of Robert Marie and against plaintiff for $500.00 for Mr. Marie’s injuries and $1,000.00 for those suffered by Ricky. The judgment is silent as to the third party demand. From that judgment, plaintiff has appealed. We affirm.

Plaintiff’s version of the incident is as follows: He testified that he went to Mr. Marie’s service station to have a new tire put on an automobile wheel. He said that he was told by Ricky that the charge was $3.50 and that he felt that the charge was too much. When Mr. Marie came, he told plaintiff the charge was $3.00. Plaintiff said that he tendered a $5.00 bill, which Mr. Marie snatched out of his hand. They went inside the station to get change. Plaintiff testified that when he held out his hand for the change, Mr. Marie slapped it down into his hand in such a manner that it fell on the floor. He asked Mr. Marie to pick up the change and Mr. Marie refused to do so in an insulting and profane manner, whereupon plaintiff hit him.

They began to fight and Ricky came into the station and started hitting plaintiff from behind. Finally, the fight was broken up by Gerald Harris, and plaintiff went outside the station. Mr. Marie also came out, after a while, and was standing about ten feet from plaintiff. Ricky came out of the station and was walking fast toward plaintiff. He claims that he did not want to “take any chances” so when Ricky got to him, plaintiff hit him, knocking him to the ground.

He then saw Mr. Marie pull a gun from under his shirt. Plaintiff testified that he held his hands up and began walking back, away from Mr. Marie, and asked him not to shoot him. However, plaintiff said that Mr. Marie shot him, inflicting the injuries for which plaintiff now is seeking damages.

Defendant’s story of what happened is quite different. He testified that plaintiff came to have two tires mounted on some rims. He started the job, but was called to the phone and Ricky finished it up. There was an argument about the charge, which Ricky had told plaintiff would be $3.50. Mr. Marie subsequently reduced the price to $3.00 and plaintiff gave him a $5.00 bill. When Mr. Marie made change, he gave plaintiff two $1.00 bills which he placed on the counter. After making change for another customer, Mr. Marie discovered that, somehow, plaintiff’s change had fallen to the floor. Plaintiff, in a loud, insulting and obscene manner, demanded that Mr. Marie pick up the change. Mr. Marie stated that he wanted no trouble in his station, and was bending over to pick up the money, when plaintiff hit him, knocking him across the room and to the floor. Plaintiff came at Mr. Marie while he was on the floor, and Ricky ran into the station to try to pull plaintiff off of his father. There was a struggle, and finally Mr. Harris was able to pull plaintiff out of the station and calm him down somewhat.

Then plaintiff began screaming that he was going to his car and get his gun and kill Mr. Marie and Ricky. Mr. Marie then went to his house and got a shotgun and a pistol. Mrs. Marie called the sheriff. Mr. Marie returned to the station, and cautioned Ricky to remain inside, and called the sheriff’s office again. However, because there was a car that Ricky was servicing, he told him to go outside and complete the job.

Plaintiff then jumped in front of Ricky and hit him near the eye, knocking him to the ground and causing severe bleeding. Ricky was on his knees on the ground, with his head down in his hands, bleeding, and Mr. Marie, seeing that plaintiff was getting ready to hit him again, pulled his gun and shot plaintiff. He testified that he was afraid that plaintiff was going to kill Ricky and that he had no other way of stopping him.

In McCullough v. McAnelly, 248 So.2d 7 (1st La.App., 1971), we reviewed the jurisprudence applicable in cases such as this. We stated therein:

“The law applicable in this situation is clear and well settled. Article 236 of the Civil Code provides:
“ ‘Fathers and mothers may justify themselves in an action begun against them for assault and battery, if they have acted in the defense of the persons of their children.’
“In the recent case of Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969), the court said:
“ Tt is correctly stated in Alexander v. McCray (La.App.), 190 So.2d 463 that “the law is well settled in actions for damages for battery that a plaintiff cannot recover damages for such battery if the evidence establishes that he is at fault in provoking the difficulty in which the injury complained of is received. See Oubre v. Judice (et al.) (La.App., 1962) 147 So.2d 745, and the cases therein cited.” Also pertinent are Stothart v. Louisiana-Arkansas Railway Company, 127 La. 409, 53 So. 668 and Johnson v. Princeville Canning Company et al. (La.App.), 205 So.2d 449.
“ Tt is equally well settled that even where there is an aggressive act, justifying a battery, the person retaliating may use only so much force as is necessary to repel the aggression; and that if he goes beyond this, he is using force in excess of what would have been reasonably necessary, he is liable for damages for injury caused by the employment of such unnecessary force. Oakes v. H. Weil Baking Company et al., 174 La. 770, 141 So. 456, Whittington v. Levy (La.App.), 184 So.2d 577, Bauman v. Heausler (La.App.), 188 So.2d 189 and Mut v. Roy et al. (La.App.), 185 So.2d 639.
“ ‘Of course, each case depends on its own peculiar facts and circumstances; and resort must be had to the evidence to determine who was the aggressor and whether more force than necessary was used to repel the aggression.’

“We find the following judicial declarations to be pertinent:

“ ‘Of course, resort to the use of a dangerous weapon in order to repel a supposed attack upon a defendant’s person or that of persons to whom he owes a duty to protect cannot be countenanced as justifiable save in exceptional cases where the actor’s fear of the danger is not only genuine but is founded on facts which would be likely to produce similar emotions in men of reasonable prudence.’ Patterson v. Kuntz, 28 So.2d 278 (Orl.La.App.1946).
“ ‘For the privilege of self-defense to exist, it is not necessary that the danger actually exist. It is only necessary that the actor have grounds which would lead an ordinary reasonable man to believe it exists, and that he so believe. All the facts and circumstances are to be taken into account to determine the reasonableness of the belief.’ Pearson v. Taylor, 116 So.2d 833 (La. App. 2 Cir.1959).
“ Tt was sufficient that he reasonably believed the danger to his brother’s life to be imminent. Given this belief based on reasonable grounds, immunity from liability is not judicially withdrawn because some other reasonable man may have perceived the idea of disabling the assailant instead of shooting him. Detached reflection, or a pause for consideration, cannot be demanded under such trying circumstances which by their very nature require a split second decision. To reason otherwise would establish a premise totally unrelated to normal human conduct under the stress of a spontaneous overflow of powerful emotions.’ Wilson v. Dimitri, 138 So.2d 618 (La.App. 4 Cir. 1962).”

In his written reasons for judgment, the trial judge said:

“There is one point clear to this Court and that is there were two separate incidents involved in this situation. The first occurred inside the service station and regardless of who is right and wrong in that situation, the Court does not believe the difficulties arising there are controlling of the outcome of this lawsuit. Mr. Davis was allowed to leave the service station and he had every opportunity to withdraw from the scene and to avoid any further confrontation or trouble with the Maries. Instead of leaving, as he should have, he stayed at the service station and the Court cannot but conclude he did so for no other purpose than to cause trouble. His attack upon Ricky was unjustified, uncalled for, unprovoked, and was vicious and brutal. The Court can readily understand the concern Mr. Marie had when he saw this attack upon his son. He sees his son viciously struck in a surprise attack by the plaintiff, knocked to the ground, bleeding, in a helpless position and apparently seriously injured. It appeared to Marie that Davis intended and would continue the assault on Ricky. Based on the fight in the service station, Marie was physically incapable of handling the plaintiff by himself. Under those circumstances and conditions, this Court cannot say that the reactions of Mr. Marie in defense of his son was unreasonable. The seriousness of the attack and the viciousness thereof is vividly shown in the photographs introduced in evidence by the defendant marked ‘Marie # 1’ and ‘Marie # 2’. Ricky was obviously seriously injured in the face as a result of the uncalled for and unprovoked attack by the plaintiff. The Court is of the opinion that Mr. Davis brought the trouble on himself. Plaintiff has no reason to complain about what happened to him since he provoked and caused his injury.”

In order to reach his conclusion, the trial judge accepted defendant’s version of the circumstances, and was of the opinion that the force used to protect his son was not unreasonable under the circumstances. We find no manifest error in this conclusion.

The judgment appealed from is therefore affirmed at plaintiff’s cost.

AFFIRMED.

BLANCHE, Judge

(dissenting).

There was absolutely no necessity for defendant, Robert Marie, to shoot the plaintiff. Admittedly, plaintiff was the aggressor in the altercation with Marie’s son, Ricky, but the law requires the person retaliating to use only so much force as is necessary to repel the aggression. If he goes beyond this and uses force in excess of that which would have been reasonably necessary, then he is liable for damages for injury caused by the employment of such unnecessary force. Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969) and the cases therein cited.

The plaintiff had no weapon and had just knocked young Marie to the ground when the defendant pulled out a pistol and shot him. He gave no warning and the use of such force under these circumstances was not only premature but grossly excessive. Assuming arguendo that plaintiff was about to continue his attack, there is no showing that defendant’s son was even remotely in danger or apparent danger of death or great bodily harm. In affirming the trial judge, this Court’s approval of the use of a deadly force by Robert Marie to prevent any further injury to his son is unjustified and contrary to law.


author: SARTAIN, Judge.

text:
    Mrs. Audrey L. STERNBERG, Plaintiff-Appellee, v. Johnnie W. MASON, Defendant-Appellant.
    No. 10997.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 29, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Feb. 1, 1977.

      Sargent Pitcher, Baton Rouge, for defendant-appellant.
    Ralph Brewer, Baton Rouge, for plaintiff-appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

In this cause plaintiff, as the holder of an installment mortgage note, instituted an executory process to seize and sell two parcels of land covered by the mortgage. Defendant, F & B Builders, Inc., sought to enjoin the seizure and sale on the grounds that the plaintiff had willingly received installment payments after their due dates and that such acquiescence precluded an acceleration of the balánce due on the note without placing it in default.

The testimony adduced at the hearing for defendant’s preliminary injunction was not transcribed and therefore is not a part of the record before us. However, for the purposes of this decision we accept the findings of fact as set forth in the trial judge’s written reasons for judgment. It is because his written reasons for judgment appeared to us to be contrary to law that we granted the instant writ.

Plaintiff is the holder of one certain promissory note dated August 5, 1966, in the principal sum of $7,030.00 executed by Johnnie W. Mason to the order of “MYSELF”, and payable in twelve monthly installments of $25.00, and the remaining monthly installments of $50.00 per month, payable on the first day of September, 1966 and on the same day each month thereafter until the said note is paid in full. This note was identified with an act of mortgage of the same date covering the subject property-

We quote from the trial judge’s written reasons for judgment, to-wit:

“The evidence shows that upon acquisition of the property by F & B Builders on December 11, 1974, a payment book was furnished it by the plaintiff in which the ‘Date Due’ was shown to be the ‘15th’; however, by January of 1975, F & B Builders commenced to pay the monthly installment after the 15th of the month and continued this custom frequently until the disputed December payment. The evidence further shows that in December an envelope was mailed to plaintiff by the mover, but no check was enclosed. Subsequently, a check for $50.00 dated December 6, 1975, was received by the plaintiff, but was returned. Thereafter, plaintiff’s attorney directed a demand letter dated December 17, 1975, in which it was indicated that suit would be instituted because of continuing delinquency in making payments. On December 18th, whether in response to the letter of demand or not, F & B Builders, through its managing officer, Robert Fuhrman, forwarded two payments to Mrs. Sternberg. These payments were rejected by plaintiff’s attorney on December 19th and he declared that the entire balance on the note was due.
“The mortgage note contains the usual acceleration provision: ‘Failure to pay any installment promptly when it becomes due shall automatically render all unpaid balance of this note due and exigi-ble.’ (Exhibit S-2) It is evident that mover, F & B Builders, Inc., was delinquent in its payment in December, whether consideration is given to the declarations made in the payment book or not. Further, it is evident that it had been tardy in making payments from the inception of its acquisition of the property. Therefore, the only question is should the plaintiff be barred from accelerating the note because of its repeated acceptance of late payments? The answer is that she is not. In Motor Liens, Inc. v. Motion Picture Advertising Service Co., Inc., 164 La. 440, 114 So. 89, cited by counsel for the plaintiff, a note containing practically the same automatic acceleration provision was considered by the court in regard to the defendant’s claim that the creditor, by accepting payment of installments on the note after maturity, waived the provisions maturing all unpaid installments. The Supreme Court rejected the contention by stating:
“ ‘The acceptance of a payment on account after the notes had matured by failure to pay the installments promptly did not in our opinion have the effect contended for by defendant. The notes had then matured in full accordingly to the terms thereof, and the acceptance of a payment on account thereof did not have the effect of extending the time for payment of the balance due thereon.’ ”
“Consequently, it appearing that the jurisprudence does not sanction the concept of waiver, the note has been accelerated and the entire balance is now due and exigible. Accordingly, the plaintiff is entitled to proceed via executiva and F & B Builders has no basis for enjoining the proposed sale. As such, the rule is vacated, annulled and set aside.”

The law applicable to situations such as that presented here was set out with particularity in Rex Credit Co. v. Kirsch, 4 So.2d 797, 799 (4th La.App., 1941):

It thus appears that there are two lines of cases, one holding that a stipulation providing for acceleration or for some other such harsh right is waived where the holder of the note, or the obligee in a contract, permits a departure from the strict provisions of the contract, and the other line of cases which does not seem to be in conflict, which holds that there is no waiver if the obligor or the maker of the note is put on notice in advance that the granting of such indulgences or delays will not be considered as a waiver of the right to insist upon the strict enforcement of the stipulation of the note or contract.

The first line of cases emanates from the holding in Standard Brewing Company v. Anderson, 121 La. 935, 46 So. 926 (1908) which stands generally for the proposition that where a series of installment payments are due and the payee customarily permits payments to be made after the date on which they are due, there is established a course of conduct whereby the payee, by acquiescence therein is deemed to have waived his right to demand that an acceleration clause be enforced without first placing the payor in default thereby signaling an end to such conduct. Acquiescence in such cases may be positive and verbal or it may be tacit. Jones v. Paul, 254 So.2d 915 (1st La.App., 1971).

The basis for such a rule is to prevent an obligee from lulling an obligor into a false sense of security by accepting late payments over an extended period of time, without demand for punctuality, and then at a future date of his own choosing accelerate the entire balance due on the obligation when the “late” payment complained of falls within the same pattern.

This rule (Standard Brewing Co., above) has no application where the obligee has made frequent and unsuccessful demands for punctual payments or where acceptance of tardy payments is the result of “unwilling or forced” indulgence on the ob-ligee’s part. Briede v. Babst, 131 La. 159, 59 So. 106 (1912), Himbola Manor Apartments v. Allen, 315 So.2d 790 (3rd La.App., 1975) and authorities therein cited at 315 So.2d 790, 793. In Briede, the court said of Standard Brewing: “That doctrine can obtain only where the tenant is ready to pay the rent promptly and needs no indulgence, but delays in paying simply because he is under the impression, produced by the lessor’s past conduct, that it is a matter of no moment whether the payments be made promptly or a few days late.”

The other line of cases, Motor Liens v. Motion Picture Advertising Service Co., above, Cantu v. Fenner, Beane and Ungerleider, 181 La. 743, 160 So. 399 (1935); and Villere & Co. v. Latter, 186 La. 91, 171 So. 705 (1936) are cited for the proposition that where a contract of indebtedness contains a stipulation that failure to strictly and promptly enforce the conditions of the agreement shall not operate as a waiver to enforce the terms thereof at anytime and without the necessity of demand or putting in default. In essence, these special clauses are urged to be a forewarning in themselves. It is contended that the contracts themselves constituted the law between the parties and should be strictly construed.

However, we observe that in each of these cases the court waived the equities involved. In Motor Liens, Inc. it was noted that at the time suit was filed other installments on the notes had become due and still remained unpaid. In Cantu, the plaintiff appealed from a judgment dismissing his action on an exception of no cause of action. In affirming, the Supreme Court stated that plaintiff’s petition contained no allegations as to fraud or misrepresentation “or unfair advantage over the plaintiff and retained the benefits realized from any wrongful acts or misconduct . (160 So. 399, 403.) In Villere and Co., Inc., plaintiff attempted to require strict adherence to the contract after having earlier brought a suit for only past due rent installments. The court stated that since the contract did not afford plaintiff that option, it could not later sue for accelerated rentals.

Our perusal of these cases, both those expressly invoking a theory of estoppel (waiver) and those declining to do so, satisfies us that each case was decided on facts peculiar to the matter there in controversy. While it is true that in each of these cases the court held that the contract was to be enforced according to its terms, the court nonetheless considered the defense of waiver and determined that the facts offered in support of such defense did not warrant a holding that the terms of the contracts themselves were modified or altered by the conduct of the parties.

We do not view these cases (Motor Liens, Inc., etc.) as authority for the proposition that in each and every case where a contract contains such a provision the conduct of the obligee is immaterial and that such obligee is entitled to strict enforcement of an acceleration clause regardless of the circumstances. An obligee is, of course, entitled to have the contract strictly complied with and to receive his payments promptly when due. However, when there has developed a course of conduct, i. e., routine late payments without complaint or objection over an extended period of time sufficient to create a justifiable belief that it is of no moment, it is essential in the interest of fairness that the obligee make known to the obligor his intent to discontinue acceptance of late payments.

With respect to the facts in the instant case, the trial judge found that when defendant purchased the property on December 11,1974, it received a payment book from the plaintiff in which the “due date” was shown to be the “15th” and that by January of 1975 defendant had commenced to pay the monthly installments after the 15th and continued this “custom” frequently until the disputed December (1975) payment. Certainly, plaintiff should not be heard to complain if the payments were made by the “15th” in accordance with the payment book she furnished the defendant. While the trial judge’s reasons for judgment do not mention any objection on plaintiff’s part to this manner of payment, we assume that none was made. Plaintiff’s brief leads us to believe that no objection was made because she takes the “hard” line that no objection on her part was necessary. Her position would have more merit if she had not permitted one entire year to expire wherein she accepted these payments after the due date or had her payment book itself not been in conflict with the note. These two factors convince us that there existed a situation which required plaintiff to notify defendant of her desire to have these payments made punctually and in accordance with the terms of the note. We therefore hold that it was error on the part of the trial judge to hold that Motor Liens, Inc., above, permitted the acceleration of all unpaid installments under the particular facts of this case.

Accordingly, for these reasons, the writ previously issued herein is made peremptory and the judgment of the trial court recalling and vacating defendant’s, F & B Builders, Inc., rule for a preliminary injunction is reversed and set aside and judgment is rendered herein decreeing that plaintiff is entitled to its preliminary injunction and this matter is remanded to the trial court for the purpose of the issuance of said preliminary injunction. All costs of these proceedings are assessed against plaintiff.

WRIT MADE PEREMPTORY AND THE RULING OF THE TRIAL COURT REVERSED.

      . Shnaider v. Graffagnini, 154 La. 363, 97 So. 491; Saxton v. Para Rubber Company, 166 La. 308, 117 So. 235; Id., 166 La. 866, 118 So. 64; Falco v. Gilbert, 2 La.App. 71, 72; Mahan v. LaFaye, 3 La.App. 445; Wunderlich v. Simpkin, 5 La.App. 35; Gottlieb v. Schloss, 5 La.App. 379; Richardson v. American National Insurance Co., 18 La.App. 468, 137 So. 370.


author: BLANCHE, Judge.

text:
    Michael GALLIANO and wife, Mary Caillouet Galliano v. Paul LIRETTE and Ronald Bergeron.
    No. 10884.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Jan. 14, 1977.
    Stanwood Duval, Jr., Houma, for plaintiffs and appellants.
    John L. Lanier, Thibodaux, for defendants and appellees.
    Before SARTAIN, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, Mary Caillouet Galli-ano, an employee of Quick Service Stores, Inc., of Houma, Louisiana, was injured while working at their establishment known as “Shop-N-Bag No. 5” and brought suit for her personal injuries. Plaintiff-appellant, Michael Galliano, is the husband of Mary Galliano and brings suit for medical expenses incurred by him as a result of his wife’s injuries.

The defendants-appellees are Paul Lir-ette and Ronald Bergeron, who were supervisory employees at Quick Service Stores. They were insured by defendant-appellee, Hartford Insurance Company, who admitted coverage but denied liability.

Mrs. Galliano was injured when she fell from a ladder while attempting to stock beer inside of a cooler. In order to reach the top shelf of the cooler where she was stacking the beer, she utilized a stepladder which was located in the cooler. She had placed two cases of beer on top of the ladder and was commencing to place the beer, which was packaged six to a pack, inside of the cooler when the cases of beer fell toward her while she was standing on the ladder, knocking her to the floor. She severely injured both knees.

Plaintiffs contend that the ladder was defective and supposedly that these defendants knew or should have known that Mrs. Galliano was using a defective ladder to stock beer in the cooler. However, there is no evidence to show that these defendants knew that the ladder was defective or, for that matter, knew how Mrs. Galliano stocked beer in the cooler. Nevertheless, both parties called expert witnesses to testify concerning the condition of the ladder. Our review of the evidence convinces us that the ladder was safe for the purpose for which it was being used.

The accident was not caused by any defect in the ladder. The cause in fact of the accident was the hazardous conduct of Mrs. Galliano in creating an imbalance in the cases of beer which she had placed on top of the ladder when she removed some six-packs of beer therefrom to put them in the cooler. This caused the beer case to tip over in her direction and knock her off the ladder.

Plaintiffs’ principal charge of negligence against these two supervisory employees is that they failed in their duty to properly instruct Mrs. Galliano in how to stock beer in a cooler. The threshold question is whether such activity was owed. In Larned v. Wallace, 146 So.2d 434 (La.App. 3rd Cir. 1962), writ refused, January 25, 1963, but unreported, the legal principle as to what constitutes negligence was discussed as follows:

“Applicable here is the definition of negligence as conduct creating an unreasonable risk to others, found in 65 C.J.S. Negligence 313 as follows:
‘It has been held that negligence does not exist unless there is a reasonable likelihood of danger as a consequence of the act complained of, and it must be measured in the light of some danger that is reasonably to be anticipated. The duty to use care is based on the knowledge of danger, and negligence or want of ordinary care includes reasonable anticipation of harm. So negligence has been defined as conduct which creates an undue risk of harm or injury to others; the failure to use such care as is necessary to avoid a danger which should and could have been anticipated, by reason of which plaintiff has suffered injury.’
“This same concept of negligence is expressed by our Supreme Court in the recent case of Brown v. Liberty Mutual Ins. Co., 234 La. 860, 101 So.2d 696 as follows:
‘Liability for damages under Article 2315 of the Civil Code is founded upon fault and whether or not fault exists depends upon the facts and circumstances presented in each particular case. In determining fault, a common-sense test is to be applied — that is — how would a reasonably prudent man have acted or what precautions would he have taken if faced with similar conditions and circumstances? The degree of care to be exercised must always be commensurate with the foreseeable dangers confronting the alleged wrongdoer.’ ”
(Larned v. Wallace, 146 So.2d at 437)

We have no difficulty in finding that the defendants had no legal duty to instruct Mrs. Galliano as to how the beer cooler should be safely stocked. Stocking beer in a cooler is not a risk-filled venture. To foresee any risk or harm in such an operation draws heavily on the imagination. To anticipate that Mrs. Galliano, while on a ladder, would stock beer in such a fashion that it would fall on her when she removed some of the beer from the cases is to virtually make these supervisory employees her insurer. Their duty is not to insure against possibility of injury to Mrs. Galliano in the performance of her duties.

Having concluded that there was no breach of duty on the part of Mrs. Galli-ano’s supervisory employers, we affirm the dismissal of the plaintiffs’ suit. All costs of this appeal are to be assessed against plaintiff s-appellants.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Rose Marie Scott DUNCAN v. Jerry Odell DUNCAN.
    No. 10894.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 20, 1976.
    Rehearing Denied Nov. 15, 1976.
    Writ Refused Jan. 14, 1977.
    James H. Kuhn, Denham Springs, for plaintiff.
    William H. Cooper, Jr., Baton Rouge, for defendant.
    Before LANDRY, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This appeal arises as the result of a divorce suit, and involves the custody of two minor children, Christopher Troy Duncan and Eric Odell Duncan, born of the marriage of plaintiff-appellant, Rose Marie Duncan, and the defendant-appellee, Jerry Odell Duncan. Judgment was signed on October 27,1975 granting the care, custody, and control of the two minor children to the paternal grandparents, Mr. and Mrs. Orville Duncan, with visitation granted to the maternal grandparents, Mr. and Mrs. Arnold Costin, commencing on alternate Fridays at 6:00 p. m. and terminating at 6:00 p. m. on Sundays. The mother of the children, plaintiff-appellant, Rose Marie Duncan has appealed.

At the custody hearing on July 22, 1975, counsel for plaintiff and defendant stipulated that neither mother nor father should be given custody of the children, but that the best interest of the children would be served by custody being granted to the paternal grandparents, the maternal grandparents, or a foster home. At that hearing, the Trial Judge listened to testimony from three welfare investigators, the maternal grandparents, and the paternal grandparents. After the hearing on July 22, 1975, the Court signed a judgment on August 1, 1975 granting temporary custody of the children to the paternal grandparents, with visitation rights granted to the maternal grandparents every weekend pending further investigation by the welfare department. After the Trial Judge heard the testimony of the welfare investigator on October 10, 1975, he signed judgment on October 27, 1975 granting custody of the children to paternal grandparents, with visitation rights granted to the maternal grandparents on alternate weekends.

Appellant urges that the Trial Court erred in granting custody to the paternal grandparents since this result was contrary to the testimony of welfare investigators who appellant considers the Court’s own expert witnesses. These welfare investigators were not called by either side to this controversy, but rather by the Court as the employees of the appropriate governmental agency charged with the responsibility of child welfare. We do not find that these investigators were tendered as expert witnesses, nor do we consider them to be the Court’s witnesses, thus placing the Trial Judge in the position of not being able to disregard their testimony. Therefore, we find no error on the part of the Trial Judge.

Secondly, appellant urges that the Trial Court committed manifest error in awarding custody to the paternal grandparents based on the evidence inasmuch as it appears from the record that one of the considerations of the Trial Judge in awarding custody on July 22, 1975, was the fact that the children were already located in the home of the paternal grandparents.

The determination of the Trial Judge in child custody matters is entitled to great weight because he is in a better position to evaluate the best interest of the children from his total overview of the conduct and character of the parties, the children and of community standards in general, and his discretion will not be disturbed on review on the absence of a clear showing of abuse thereof.

Appellant points out that the children were in the home of the paternal grandparents because their paternal grandfather or their father refused to allow them to leave after they had been brought there for a visit by their mother. It is further pointed out that for the Trial Judge to give any consideration to the physical presence of the children encourages parties involved in custody litigation to abuse the children mentally and physically in order to have them in a desired physical location prior to the filing of a custody matter. While we agree with appellant, we are not satisfied that this was the solé consideration when the Trial Court rendered its judgment on October 10, 1975, which was signed on October 27, 1975. The judgment was apparently based on a consideration of all of the facts before the court inasmuch as the Trial Judge made the following statement:

“I am not satisfied with the attitude of the maternal grandparents. My inference and conclusions from the supplemental report is different from the conclusions that Mrs. Montgomery [welfare investigator] have drawn.”

We find no abuse of the discretion of the Trial Judge in this matter.

Thirdly, appellant urges that the Trial Judge erred in signing a judgment for custody which varied from its judgment of August 1, 1975, since at the close of the hearing on October 10, 1975, the Trial Judge stated that he was going to make the custody judgment of August 1, 1975, final. The August 1 judgment provided the maternal grandparents with visitation rights every weekend, but the October judgment provided visitation rights to the maternal grandparents only on alternate weekends. Appellant urges that the judgment signed in October must conform to the judgment signed in August because the Trial Judge said he was going to make the prior judgment final. Appellant, however, cites no authority for this contention. We realize that there is an obvious discrepancy between the two judgments, but we are not in a position to determine whether at the close of the hearing on October 10, 1975, when the Trial Judge stated that he was going to make the prior August judgment final, whether he intended to adopt every provision of the August judgment, or whether he merely intended to allow the custody to remain as provided in the August judgment, irrespective of the visitation privileges. We must conclude that the Trial Júdge reviewed the written judgment prior to signing it on October 27, 1975, and thus approved the change in the visitation privileges. Therefore, we see no reason to reverse the Trial Judge.

For the above and foregoing reasons, the judgment of the Trial Court is affirmed, at the appellants’ cost.

AFFIRMED.


author: HALL, Judge.

text:
    Janice Lynn Houck MAYS, Plaintiff-Appellant, v. PICO FINANCE COMPANY, INC., Defendant-Appellee.
    No. 13054.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 1, 1976.
    En Banc. Rehearing Denied Dec. 6, 1976.
    Writ Refused Feb. 9, 1977.

      Kidd & Katz by Paul H. Kidd, Monroe, for plaintiff-appellant.
    Davenport, Files, Kelly & Marsh by William G. Kelly, Jr., Monroe, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Plaintiff sued Donald Shockley and Pico Finance Company of Ruston, Inc. for damages, alleging that Shockley, an employee of Pico Finance, raped her. Pico was made a party both on the theory that Pico was negligent in hiring Shockley and on the theory that Shockley was acting within the course and scope of his employment at the time of the alleged rape. Plaintiff requested a jury trial.

Shockley did not answer and the issue of his liability was tried before the judge on confirmation of default. Both the issue of liability of Pico Finance and the amount of damages suffered by plaintiff were tried before the jury. The jury returned the following special verdicts: (1) plaintiff was raped by Shockley; (2) plaintiff suffered no damages; (3) Shockley was not acting within the scope of his employment at the time of the rape; (4) Pico should have known of the criminal record and past history of Shockley; and (5) this knowledge would not have placed Pico on notice that Shockley was likely to commit rape.

The trial judge found that plaintiff made out a prima facie case of wrongful conduct on the part of Shockley, but, on the basis of the jury’s finding of no damages, denied recovery against Shockley. Judgment was rendered denying recovery against both defendants and plaintiff appealed. We affirm the judgment in favor of Pico Finance and reverse the judgment denying damages against Donald Shockley.

Facts

On Friday, March 19, 1974, plaintiff was sent to Pico’s office by an employment agency to apply for a job. She was interviewed by Shockley, assistant manager of Pico. Shockley offered to take her to Monroe the following day for an interview with Mr. McFarland, who was the manager of the Monroe office, but who plaintiff thought was a district manager whose approval was needed for her employment. Plaintiff agreed to this proposed trip and met Shockley about noon the following day, Saturday, at the Holiday Inn in Ruston. She and Shockley went in his car to Monroe. On reaching Ouachita Parish they stopped at the Rusty Nail, a tavern adjacent to the Rodeway Inn in West Monroe, but it was closed. They then went to Pico’s office on Louisville Avenue in Monroe, where Shockley thought he might find McFarland, but the office was closed. They went across the street to the Chateau Lounge and had some drinks. Shockley attempted to reach McFarland by phone at his home while he was in the Chateau but was unsuccessful. The barmaid at the Chateau attempted to reach McFarland for Shockley by calling the Ramada Inn where she said McFarland often went to have a drink, but McFarland was not there. Plaintiff and defendant then returned to the Rusty Nail, which had opened, and had more drinks. Shockley then rented a room at the Rodeway Inn.

Plaintiff testified she believed the room was McFarland’s room. Shockley testified she was well aware he had rented the room. At the time the room was acquired, plaintiff and defendant had been together from about 1:00 p. m. to 5:00 p. m. and had several drinks. Plaintiff wanted to make a call to Ruston and because it was a long distance call, Shockley suggested she make it on the room phone. She went to the room alone and after she had been there for some time, Shockley came into the room. She testified that he yanked the phone from her hand, and that over the next hour or two he raped her three times. Shockley admitted the sexual relations with plaintiff but stated she consented to same.

A barmaid brought drinks to the room twice and on one occasion she saw plaintiff lying in bed covered up to her neck. The barmaid said plaintiff’s hair was neat and that plaintiff made no indication to her that she was having any problem.

The plaintiff testified she eventually was able to get Shockley to take her back to the Rusty Nail where she succeeded in getting away from him. She was picked up in the street in front of the Rusty Nail by a boy in a pickup truck and she told him she had been raped. He carried her to the home of friends and thereafter the incident was reported to the authorities. Shockley was subsequently prosecuted and pled guilty to simple rape.

Shockley had only been employed at Pico for 4V2 months and his job as assistant manager did not include the duty of interviewing applicants for employment. In fact, at the time he interviewed plaintiff on Friday, March 16, the vacancy which had existed in Pico’s Ruston office had already been filled by virtue of interviews with a job applicant by the manager of the Ruston office, Mr. Disman. The Pico office in Ru-ston was completely autonomous from the Pico Monroe office managed by McFarland. Shockley had no duties whatsoever in connection with the Monroe office. He had never met McFarland, and only had a vague notion that there might have been a vacancy in the Monroe office.

Wrongful Conduct

The testimony as to what happened in the motel room is in sharp conflict. The jury was undoubtedly influenced, and properly so, by Shockley’s guilty plea in finding plaintiff was raped. The trial judge found “plaintiff had not entirely consented to all of the acts of the defendant Shockley” and that he was guilty of wrongful conduct toward her. There is substantial evidence in the record to support the findings of the jury and the trial judge. This court will not disturb those factual findings. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Course and Scope of Employment

The Supreme Court recently outlined the test for determining whether the intentional tort of an employee was within the course and scope of employment so as to make the employer liable for damages under LSA-C.C. Art. 2320. The determinative question is whether the tortious conduct of the employee “was so closely connected in time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests.” LeBrane v. Lewis, 292 So.2d 216 (La.1974).

The tortious conduct in the instant ease was certainly not closely connected in time, place or causation with Pico Finance of Ruston, Inc. Shockley was not working on the Saturday in question. His duties did not include hiring employees nor any other activity in connection with the Monroe office. His trip to Monroe with plaintiff was purely for his own personal considerations. Shockley was not acting for Pico on the day of the tortious conduct. Shockley may have given plaintiff the impression he was acting for Pico, but he was not actually doing so. He was not performing any duty which he was employed to perform. Jefferson v. Bose Oil Company of Dixie, 232 So.2d 895 (La.App. 2d Cir. 1970). The motive of the employee in performing the act is of paramount importance. St. Paul Fire & Marine Insurance Company v. Roberts, 331 So.2d 529 (La.App. 1st Cir. 1976). Shockley’s motives were strictly personal. Shockley was not acting in the course and scope of his employment at the time of the wrongful conduct and his employer is not responsible for his intentional tort under LSA-C.C. Art. 2320.

Negligence

Plaintiff also contends Pico Finance was negligent in hiring Shockley and that such negligence was a legal cause of the harm to plaintiff. Pico did not make mojtg than a cursory check of Shockley’s background. A thorough investigation would have revealed that Shockley had pled guilty to theft, was an alcoholic, and had personality problems. However, there was no evidence of past sex offenses. The jury found that Shockley’s past history could not reasonably lead Pico to anticipate that Shockley might commit rape. We agree with that finding. Even if Pico had a duty to protect plaintiff from the actions of an off-duty employee she originally met at the office, which is highly questionable, the harm plaintiff suffered could not have been foreseen.

In Lou-Con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192 (La.App. 4th Cir. 1973), writ refused, 290 So.2d 899, 901 (La.1974), Gulf’s employee had a prior conviction of theft. He committed arson, and Lou-Con sued Gulf for damages. The court found the theft conviction did not make the commission of arson reasonably foreseeable and, therefore, Gulf was not liable in tort. It is equally unforeseeable that a man with a past history only of crimes against property will commit rape. Pico is not liable on the basis of negligence.

Damages

Although we affirm the judgment in favor of defendant, Pico Finance, the judgment denying recovery of damages against defendant Shockley cannot stand. Both the trial judge and the jury found wrongful conduct on the part of defendant toward plaintiff. Plaintiff is entitled to damages for the forcible offense against her person. The testimony of a psychiatrist offered by plaintiff is not persuasive and obviously was not accepted by the jury. Plaintiff did not see the psychiatrist, to whom she was referred by her attorney, until more than nine months after the incident and then did not pursue treatment by him until nine more months later, shortly before trial.

Plaintiff is entitled to some damages for physical and mental injury, distress and humiliation. Under all of the circumstances, we consider an award of $5,000 to be within the lower range of discretion and fix the award at that amount.

Decree

For the reasons assigned, the judgment rejecting plaintiff’s demands against Pico Finance Company of Ruston, Inc. is affirmed. The judgment rejecting plaintiff’s demands against Donald Shockley is reversed, and it is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Janice Lynn Houck Mays, against defendant, Donald Shockley, in the amount of $5,000, together with legal interest thereon from date of judicial demand until paid and all costs of this proceeding, including the cost of appeal.

Affirmed in part, reversed in part, and rendered.