author: BOUTALL, Judge.

text:
    Hughes J. de la VERGNE, II and Charles E. de la Vergne, Jr. v. Louis V. de la VERGNE
    No. 10216.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 12, 1979.
    Henican, James & Cleveland, C. Ellis Heniean, New Orleans, Counsel for petitioners-appellees.
    Sidney M. Bach, Gerald D. Wasserman, New Orleans, counsel for Louis V. de la Vergne, appellant.
    Before REDMANN, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This is a motion to dismiss an appeal from a judgment which denied defendant’s prayer for a new trial, refused to vacate a “judicial sequestration” and ordered defendant and a third party to produce the movable property sought to be sequestered.

The procedural posture of this case is somewhat complicated by failure to adhere strictly to the Code of Civil Procedure, but the pertinent facts are as follows:

Plaintiffs-Appellees filed suit for partition of a valuable book of which they claim to be co-owners, and which they allege to be in the custody of defendant-appellant. Plaintiffs also prayed for sequestration of the book, but the sequestration finally issued was not the usual sequestration at the request of a party, but an order of sequestration issued by the court in reliance upon C.C.P. Article 3573 and Civil Code Article 2979. The defendant then filed a motion for a new trial asking that the sequestration be set aside since the book was no longer in his possession and was now in custody of a third party living in France, and alternatively that a hearing should be conducted on the propriety of the sequestration.

The trial judge granted a hearing on the motion and denied the motion for a new trial, refused to vacate the judicial sequestration, directed the third party in France (not joined herein) to return the book to the Clerk of Court, and ordered the defendant to use good faith efforts to have the book returned to the Clerk of Court. The judgment refrained from ruling on the question of jurisdiction pending the further action of the third party in France. From this decision, the defendant appeals. Plaintiff then filed this motion to dismiss the appeal contending that no appeal lies from an interlocutory decree of sequestration.

Code of Civil Procedure Article 2083 sets out the standards for the appealability of judgments. The Article reads as follows:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

We note that the judgment finally rendered is more than a simple issuance of a writ of sequestration. The judgment refuses to dissolve the sequestration order and orders that both the defendant, and a third person not made party to this suit, produce the book sought to be sequestered and hand it to the Clerk of Court for safe keeping. The judgment thus orders the appealing defendant to do an act, which, if left undone, or done improperly, could cause his citation for contempt of court. Obviously such a judgment fulfills the requirements of C.C.P. Article 2083 and the motion to dismiss is denied.

MOTION DENIED.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    PARISH OF EAST BATON ROUGE v. KOSAY ENTERPRISES, INC., et al.
    No. 12393.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.

      Joseph F. Keogh, Parish Atty., and Asst. Parish Atty. Stephen R. Wilson, Baton Rouge, of counsel for plaintiff-appellant, Parish of East Baton Rouge.
    Thomas Keene, in pro. per.
    Kosay Enterprises, Inc., thru: Ernest & Lanna Cosse, III, Thelma Cosse, in pro. per.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

The Parish of East Baton Rouge (Appellant) appeals from summary judgment awarding Appellant $2,805.00, plus penalties and interest, representing sales and use taxes owed by defendants, Kosay Enterprises, Inc., (Kosay), and Kosay’s principal owners, Ernest Cosse, III, Lanna Cosse and Thelma Cosse, on ticket sales and concession receipts by defendants in the conduct of a musical jamboree. Thomas Keene, a joint venturer of Kosay is also defendant herein. Appellant seeks to increase the award to $4,500.00. We affirm.

On May 6, 1978, defendants conducted a live music outdoor concert at the Baton Rouge State Fairgrounds for which advance tickets were sold at $11.00 each and $14.00 was charged for tickets sold at the gate. Defendants concede that no sales tax returns were filed and no taxes paid prior to institution of suit by Appellant claiming $8,000.00 in sales taxes. The amount demanded was based on estimated crowd size made by Appellant’s field inspectors who attended the jamboree for that specific purpose.

Appellant brought this proceeding pursuant to La.R.S. 33:2841, et seq., to enforce its assessment, and the matter was initially scheduled for hearing on May 26, 1978. The case was reassigned to June 9, 1978, and again rescheduled for June 23, 1978. Prior to hearing on the latter date, defendants tendered and paid Appellant $2,805.00 predicated on a sale of 7600 tickets allegedly sold for the occasion.

It is conceded that defendants filed no answer to Appellant’s demands prior to the hearing. The use of summary proceeding in a tax assessment and collection suit is authorized by La.R.S. 47:1574 which pertinently provides:

“(2) All defenses, whether by exception or to the merits, made or intended to be made to any such claim, must be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed. This provision shall be construed to deny to any court the right to extend the time for pleading defenses; and no continuance shall be granted by any court to any defendant except for legal grounds set forth in the Louisiana Code of Practice.”

Attached to Appellant’s petition is an affidavit of Appellant’s Director of Finance which attests merely that the amount of $8,000.00 is due by Kosay; that the amount is delinquent; that Appellant has a lien on defendant’s property; that the affidavit is made for the purpose of enforcing collection; and, that amicable demand has been made without avail. The affidavit does not recite that the facts stated therein are true to the best of affiant’s knowledge and belief.

At the trial Appellant reduced its claim to $4,500.00. In proof of its case, Appellant produced witnesses who gave estimates of attendance based either on personal observation or information received from others. When defendants attempted to introduce evidence of a smaller attendance, Appellant objected to such evidence on the ground that it contravened Section 1574(2), above. The trial court overruled Appellant’s objection and allowed defendants to present a defense.

Appellant maintains the trial court erred in allowing defendants to present a defense despite defendants’ failure to timely file an answer and also erred in rejecting Appellant’s claim for $4,500.00. Appellant requests its award be increased to the amount claimed.

We find that the trial court erred in receiving evidence by which defendants sought to show the amount owed was less than the $4,500.00 claimed by Appellant. In St. John the Baptist P.S.B. v. Marbury-Pattillo C. Co., 259 La. 1133, 254 So.2d 607 (1971) our Supreme Court held clearly that if a defendant fails to timely file his defense in a summary proceeding pursuant to La.R.S. 47:1574, it is error for the trial court to consider any defense offered.

Notwithstanding the error, and rejecting all consideration of evidence offered by defendants, we must affirm the award because we find that evidence offered by Appellant supports the finding of the trial court that only 7600 tickets were sold for the jamboree and therefore only $2,805.00 is due by defendants.

Appellant called its Department of Finance accountant, George J. Maretta, who testified that he made the initial assessment of $8,000.00 based on attendance estimates of 15,000 given him by field agents who personally attended the jamboree. He also mentioned a conversation with defendant’s Chet Williams, Kosay’s Vice President, who informed him that only 7600 tickets were sold for the occasion; that all tickets were accounted for; that about 500 persons gained entrance without paying an admission charge; and that about 800 complimentary tickets had been issued.

Clifford Waters, a revenue inspector for Appellant’s Department of Finance, attended the jamboree and estimated the attendance at 15,000 persons based on the crowd and number of vehicles observed in the parking lot.

Carol Kloss, reporter for a local television station, was permitted to testify that she was told by defendants’ employees that between 13,000 and 15,000 people were in attendance.

Defendants Thomas Keene and Ernest Cosse were called on cross-examination by Appellant. Both attested their belief that the paid attendance was only 7600 regardless of the size of the crowd in attendance.

La.R.S. 47:1574, governing use of summary proceedings in tax cases provides as follows:

“(4) Whenever the pleadings filed on behalf of the state, or on behalf of the collector, shall be accompanied by an affidavit of the collector or of one of his assistants or representatives or of the counsel or attorney filing the same, that the facts as alleged are true to the best of the affiant’s knowledge or belief, all of the facts alleged in said pleadings shall be accepted as prima facie true and as constituting a prima facie case, and the burden of proof to establish anything to the contrary shall rest wholly on the defendant or opposing party.”

As a general rule, tax laws are liberally interpreted in favor of the taxpayer and strictly construed against the levying authority. Any doubt or ambiguity in such statutes is resolved in favor of the taxpayer. Colonial Pipeline Company v. Mouton, 228 So.2d 718 (La.App. 1st Cir. 1969); Higgins, Inc. v. Walker, 129 So.2d 840 (La.App. 1st Cir. 1961).

Under the circumstances, Appellant was compelled to rely on proof of its claim and could not rest on its affidavit as prima facie proof of the amount demanded. This is so because the affidavit did not recite that the stated facts were true and correct to affiant’s knowledge and belief.

Based on the proof offered by Appellant, we find no manifest error in the trial court’s conclusion that the paid attendance was 7600 and the tax owed by defendants was $2,805.00. Factual findings of the trier of fact are entitled to great weight and are not to be disturbed on appeal except on a showing of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The judgment is affirmed, Appellant being cast for all costs for which Appellant is legally liable.

Affirmed.


text:
    Lawrence D. TRAHAN v. R. C. RITTERMAN.
    No. 12399.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.

      Clinton Hyatt, Jr., Baton Rouge, of counsel for plaintiff-appellant, Lawrence D. Trahan.
    Woodrow Wyatt, Baton Rouge, of counsel for defendant-appellee, R. C. Ritterman.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendant (Appellant) appeals from judgment awarding plaintiff (Appellee) $1,000.00 in general damages for defamatory statements by Appellant accusing Appel-lee of theft. Appellee has also appealed requesting an increase in the amount of the award. We affirm.

The litigants were co-owners of a trailer camp situated on Grand River in Iberville Parish. The camp was furnished with articles belonging to the owners .individually and in indivisión. Plaintiff’s interest in the camp began to wane and in July, 1974, Appellant agreed to purchase plaintiff’s share. Before the sale was confected, plaintiff removed certain personal articles from the camp and so informed defendant who requested that plaintiff not reenter the camp without Appellant’s permission. Upon visiting the camp following the sale, Appellant discovered that certain articles of minor value, most of which belonged to plaintiff, were missing. Noting that entry was obviously by key (since no evidence of forcible entry was detected), and observing signs indicative of known characteristic traits of plaintiff, defendant filed a burglary report with the Iberville Parish Sheriff’s Department and named plaintiff as a possible suspect. Although plaintiff was contacted by the Sheriff’s Department, plaintiff was never formally arrested or prosecuted. As might be expected, ill feeling arose between the parties. On several occasions Appellant related to mutual friends Appellant’s suspicion of plaintiff’s involvement in the alleged burglary and the subsequent vandalism of Appellant’s camp sign which was damaged, apparently with the aid of a truck. Appellant also contacted Vincent Filardo, a mutual relative of the parties, who was also plaintiff’s employer. Appellant related to Filardo the circumstances involved and requested Filardo’s intervention as peacemaker or intermediary to heal the rift which had developed.

Plaintiff ignored Appellant’s overtures of reconciliation and filed this action alleging that defendant intentionally and maliciously defamed plaintiff’s reputation and good name by informing numerous parties that plaintiff had burglarized and vandalized Appellant’s camp. Defendant answered in the form of a general denial the substance of which is as follows:

“For lack of sufficient information to justify a belief in the truth thereof, the defendant, R. C. Ritterman, denies the allegations of Articles I, II, III, IV, V, VI, and VII of plaintiff’s petition.”

At trial Appellant offered evidence to establish that the statements were privileged and also true. Plaintiff objected to such proof on the ground that truth and privilege are affirmative defenses which must be specially pleaded in answer. The trial court, however, allowed proof on the ground that these issues had been raised in pre-trial conference. After trial on the merits, the lower court found that the statements were not true and that some were not privileged. The court found that no burglary had occurred as contended by Appellant because, assuming plaintiff to have been the trespasser, the articles taken were of insignificant value and belonged to plaintiff in the first place. The trial court also found that Appellant’s accusations were based purely on circumstances and were largely the result of ill feeling which developed between the parties, in some measure occasioned by plaintiff’s demand for immediate payment for plaintiff’s interest, which payment Appellant contends plaintiff had agreed to defer to suit Appellant’s convenience. Appellant’s filing of the burglary report was found by the trial court to have been improvident in that it was not based on probable cause.

Appellant maintains the trial court erred in: (1) holding that falsity of defamatory statements may be presumed without a showing of fault on defendant’s part; (2) finding that the statements were not justified as true; (3) holding that the statements were not privileged; (4) holding that damages may be presumed without proof thereof; and, (5) awarding excessive damages.

Words which impute criminal action to another are defamatory per se. Snowden v. Pearl River Broadcasting Corp., 251 So.2d 405 (La.App. 1st Cir. 1971); Parsons v. Gulf & South American Steamship Co., 194 So.2d 456 (La.App. 4th Cir. 1967).

Relying on Martin v. Markley, 202 La. 291, 11 So.2d 593 (1942) and Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2d Cir. 1975), the trial court properly held that when alleged defamatory words are found to be defamatory per se, falsity and malice are presumed and defendant bears the burden of rebutting the presumption.

Defendant argues, however, that the United States Supreme Court decisions of Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1975) and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1973), have nullified our prior jurisprudence holding that defamatory statements, such as those involved herein, constitute defamation per se and thus relieve plaintiff of the burden of proving falsity and malice. These authorities, in effect, prohibit states from imposing liability without fault and require a greater burden of proof on plaintiff’s part as regards news media defendants in defamation suits. We find Firestone, above, and Gertz, above, inapplicable herein insofar as concerns proof of the issues of falsity and malice. See Rosen v. Reed, 351 So.2d 1284 (La.App. 1st Cir. 1977) (concurring opinion).

We believe the cited Supreme Court decisions leave intact our jurisprudence on defamation, provided liability is not imposed without fault. Our jurisprudence requires that the following elements be shown to maintain an action in defamation: (1) defamatory words; (2) publication, that is communication to one other than the party defamed; (3) falsity; (4) malice, actual or implied; and, (5) resulting injury. Ward v. Sears, Roebuck & Co., 339 So.2d 1255 (La. App. 1st Cir. 1976); Shylock, Inc. v. Covenant Broad. Corp. of La., 352 So.2d 379 (La.App. 4th Cir. 1977).

We find that the trial court did not rely on the presumption of malice and falsity applicable when words are defamatory per se, but made a specific finding of falsity on the premise that the articles allegedly taken belonged to plaintiff and therefore could not be the subject of theft by plaintiff. We find this determination amply supported by the record.

Proof of the truth of a defamatory statement is an absolute defense to an action of defamation. Deshotel v. Thistlethwaite, 240 La. 12, 121 So.2d 222 (1960); Rosen v. Capital City Press, 314 So.2d 511 (La.App. 1st Cir. 1975). The burden of proving the truth of a defamatory statement lies with the defendant; Rosen v. Reed, supra; Parsons v. Gulf & South American Steamship Co., supra.

As previously noted, the trial court allowed defendant to offer proof of the alleged truth and privilege over plaintiff’s objection that these affirmative defenses had not been pled in defendant’s answer. La.C.C.P. Article 1005 enumerates various affirmative defenses which must be specially pleaded in answer. The list is illustrative, not exclusive.

Affirmative defenses raise new matters which, assuming the allegations of the petition to be true, constitute defenses to the action which have the effect of defeating plaintiff’s demands on the merits. Webster v. Rushing, 316 So.2d 111 (La.1975); Langhans v. Hale, 345 So.2d 1226 (La.App. 1st Cir. 1977).

In a defamation action the defenses of truth and privilege fall in the category of affirmative defenses which must be pled in defendant’s answer since proof of either defeats plaintiff’s action. Pastrana v. Katz, 179 So. 117 (La.App.Orl.1938).

In this case, neither such defense was pleaded in defendant’s answer. At pre-trial conference, however, defendant indicated intent to establish the truth of the statements made but made no mention of privilege. At trial defendant offered evidence of both truth and privilege, which testimony was timely objected to by plaintiff. The trial court allowed proof of both truth and privilege on authority of Austrum v. City of Baton Rouge, 282 So.2d 434 (La.1973), wherein the Supreme Court held that the affirmative defense of contributory negligence was available to a defendant who had not raised the issue in answer but who advanced the issue at pre-trial conference. Austrum, above, held that the purpose of La.C.C.P. Article 1005 is to give plaintiff fair notice of the defense and prevent surprise, and that where notice is given at pre-trial, the requirement of Article 1005, above, is satisfied.

In view of the pleadings and record herein, we find that the trial court correctly allowed evidence of the alleged truth of defendant’s statements, but erred in allowing defendant to offer proof of privilege. Finding that the defense of privilege was not properly raised, we pretermit consideration thereof.

Plaintiff steadfastly denied having visited defendant’s camp at any time proximate to the incident in question. He also stated he had not been to the camp for almost one year prior to the alleged burglary, except for an occasion when he retrieved certain personal belongings to defendant’s knowledge. The trial court determined the accusations to be untrue. We find no error in this conclusion and therefore affirm the ruling. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

We find no merit in Appellant’s argument that the trial court erred in holding, contrary to Firestone and Gertz, above, that a mere assertion of criminal conduct is injurious to the reputation of the defamed party and entitles such party to damages without proof thereof.

Our law is well established to the effect that even in the absence of proof of pecuniary loss, injury to reputation may result from the nature of the defamatory words alone. Wilson v. Capital City Press, 315 So.2d 393 (La.App. 3d Cir. 1975). In several instances our jurisprudence has held that a presumption of damage arises from a false accusation of theft. See, for example, Lucas v. Ludwig, 265 So.2d 245 (La.App. 4th Cir. 1972) and cases therein cited.

Significantly, we note that in Gertz, above, the Supreme Court held that, with few exceptions, states may not allow recovery for presumed damages in defamation cases, but must instead award damages on competent evidence thereof. We also note in Gertz the following language:

“. . . It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define “actual injury,” as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. . .

We interpret the foregoing to mean that damages for humiliation, embarrassment and mental anguish and suffering, although required to be shown by competent evidence, need not be established in terms of pecuniary value.

In Firestone, above, the court affirmed damages based on the testimony of several witnesses who attested to plaintiff’s anxiety and concern over inaccurate reports published by defendant concerning plaintiff’s divorce. Firestone affirmed Gertz, supra, by reiterating that states may award defamation damages based on elements other than injury to reputation, such as personal humiliation, embarrassment and mental anguish and suffering.

In this instance, the trial court found little damage to plaintiff’s reputation because numerous witnesses testified that their personal opinions of plaintiff had not changed inasmuch as they did not believe Appellant’s accusations to be true. The record contains, however, testimony of plaintiff, plaintiff’s wife, and other witnesses concerning plaintiff’s humiliation and embarrassment resulting from plaintiff being contacted by law enforcement officials and repeated teasing endured by plaintiff at the hands of co-workers on the job. We find adequate proof in the record upon which the trial court could award plaintiff damages for humiliation, embarrassment and mental pain and anguish.

As regards quantum, it is well settled that in such matters the trier of fact is vested with considerable discretion the exercise of which will not be disturbed on appeal except in case of a showing of manifest error. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Finding no such error herein, we affirm the award.

The judgment is affirmed at the cost of defendant-appellant, R. C. Ritterman.

Affirmed.


text:
    Rae Marie DAIGLE v. ROBINSON BROTHERS, INC. et al.
    No. 12437.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.

      Rae Marie Daigle, in pro. per.
    R. Gray Sexton, Baton Rouge, of counsel for defendant-appellant, Robinson Brothers, Inc.
    Shelby Easterly and Eugene R. Groves, Baton Rouge, of counsel for defendant-ap-pellee, Ford Motor Co.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendant Robinson Brothers, Inc. (Appellant) appeals from judgment awarding plaintiff Rae Marie Daigle $950.00 as the cost of curing a defective paint job on a 1974 Mercury Comet automobile purchased by plaintiff from Appellant, and rejecting Appellant’s third party demand against Ford Motor Company (Manufacturer) for reimbursement thereof. We affirm.

Although plaintiff has filed a brief in this court seeking additional recovery for inconvenience and other alleged damages, plaintiff has neither appealed nor answered Appellant’s appeal. Under the circumstances we may not consider the claims made by plaintiff in brief alone. La.C.C.P. Article 2133. Accordingly, the scope of this appeal is limited to Appellant’s third party demand against Manufacturer.

Subject vehicle, a white automobile, was purchased by plaintiff from Appellant on October 11, 1974. At the time of sale, the vehicle was somewhat dirty because it had been sitting on Appellant’s lot since delivery to Appellant approximately five months prior to plaintiff’s purchase. The vehicle was cleaned and prepared for delivery to plaintiff who noted the presence of rust spots on the car and so informed Appellant’s salesman who told plaintiff that Appellant would clean the vehicle with a chemical compound. After accepting and driving the car, plaintiff began experiencing numerous problems with the vehicle. The radio was defective, the engine misfired, the trunk leaked and the rust spots became more prominent. These difficulties resulted in plaintiff returning the car to Appellant for corrective action on October 21, 1974, December 31, 1974, February 13, 1975, March 5, 1975, and May 15, 1975, as shown by Appellant’s records. It is conceded the vehicle was also returned on other occasions, the number of which is in dispute between plaintiff and Appellant. When the vehicle was returned October 21, 1974, a repair order issued by Appellant indicated that a “rust problem” would be taken care of “later.”

It is shown that the vehicle was shipped from manufacturer’s assembly plant in Atlanta, Georgia, via open motor carrier, through Birmingham, Alabama, to Baton Rouge. There is no dispute over the fact that when shipped by manufacturer, the vehicle’s paint job was free of defects. It is also acknowledged that the vehicle was subjected to industrial fallout during transit, which incident most probably occurred when the transport passed through Birmingham where steel mills are known to emit fallout in the form of minute steel filings. According to the record such steel filings settle on paint, oxidize within several hours of exposure to moisture and become apparent in the form of tiny rust spots on the surface of an automobile. The contamination may be easily removed by washing with a solution of oxalic acid upon their appearance. If the condition is not thus chemically treated, the rust will destroy the paint and attack the metal surface of an automobile, causing holes in the body thereof.

Appellant’s franchise with Manufacturer requires Appellant to inspect each vehicle upon delivery and make note of any defects discovered. Manufacturer assumes the cost of cleansing vehicles affected by industrial fallout during transit, which cost is approximately $10.00 per vehicle. Appellant made no such claim for dealer preparation in this instance. The record does not show whether Appellant inspected the vehicle upon delivery. If an inspection was in fact made, no observable defects were recorded.

Plaintiff complained bitterly and often about the rust spots which became progressively worse. Appellant’s service manager maintains the vehicle was washed with acid at some time after acceptance by plaintiff, the precise date of which was not entered on Appellant’s records. In any event, the paint condition worsened until the only solution was to have all the old paint removed and a new paint job applied. The trial judge allowed the sum of $950.00 to plaintiff for a new paint job.

The trial judge rejected Appellant’s third party demand upon finding that the defect was not one of manufacture, in which determination we concur because the parties agree the condition resulted from industrial fallout. The trial judge also found that Appellant was under a contractual duty to examine the car on arrival, note defects, if any, report the defects to Manufacturer, and obtain authority to cure the defects at Manufacturer’s cost. In addition, the trial judge held Appellant was negligent in failing to inspect the vehicle upon arrival so that the condition could have been detected and remedied at nominal cost, and for having let some five months elapse during which time serious damage was done to the paint, thus necessitating a complete new paint job. Appellant argues the trial judge erred in so holding because no defense of negligence was raised in Manufacturer’s defense of Appellant’s third party demand.

Relying on La.C.C. Article 2531, Appellant correctly contends that as seller, Appellant has a right of action against Manufacturer, in redhibitoion, which right may not be abridged, restricted or diminished by agreement between such parties.

A redhibitory defect which gives rise to avoidance of a sale is a defect which renders the object either absolutely useless, or its use so inconvenient and imperfect that it must be supposed the buyer would not have made the purchase had he known of the vice. La.C.C. Article 2520.

The buyer seeking cancellation of a sale for redhibition must show that the vice existed before the sale to him. If the vice appears within three days immediately following sale, it is presumed to have existed before the sale. La.C.C. Article 2530.

The record establishes conclusively that industrial fallout may be the source of potential redhibitory defect, if not timely detected and treated. It is just as conclusively shown that timely detection and care reduces the defect to one of very minor proportions, curable at nominal cost.

We find that in this instance subject vehicle was affected with only a minor vice at the time of delivery to Appellant because at that point it was neither useless nor its use so imperfect or inconvenient that Appellant would have declined acceptance because of the fallout thereon. It is conceded that had Appellant inspected the vehicle and discovered the fallout, Appellant would have cleaned the vehicle with acid and billed manufacturer for the cost of this curative work.

We agree with the trial court’s determination that what amounted to a very minor defect which Appellant could and should have discovered, became a redhibitory vice because of Appellant’s dereliction. Finding no redhibitory defect at the time of sale to Appellant, we find no basis for maintaining Appellant’s action in redhibition against Manufacturer.

The judgment of the trial court is affirmed at Appellant’s cost.

Affirmed.


text:
    INTERSTATE SCHOOL SUPPLY COMPANY, INC. v. Woodrow WILSON, d/b/a Woodrow Wilson Construction Company, Inc., et al.
    No. 12438.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.
    Billy 0. Wilson, of Wilson & Sexton, Baton Rouge, counsel for plaintiff-appellee-in-terstate School Supply Co., Inc.
    George P. Bevan, of McKinnis, Juban & Bevan, Baton Rouge, counsel for defendants-appellants-Woodrow Wilson et al.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendants, Woodrow Wilson Construction Company (Contractor) and its surety Safeco Insurance Company of America (Surety), appeal from judgment awarding plaintiff (Subcontractor) attorney’s fees, in Subcontractor’s suit to recover for materials and supplies furnished by Subcontractor to Contractor on a public works project, pursuant to LSA-R.S. 38:2246.

The sole issue presented is whether subject statute permits recovery of attorney’s fees on a sworn recorded claim of this nature when a contractor pays a portion of the claim after recordation of a sworn recorded claim, pays an additional portion of the claim after suit is filed against him, and the creditor obtains judgment for the balance, thus effecting a total recovery of the amount of the sworn recorded claim. The trial court held that Subcontractor was entitled to attorney’s fees under such circumstances and rendered judgment accordingly. We affirm.

There is no factual dispute. In 1974, Contractor entered into an agreement with the Iberville Parish School Board for the construction of improvements to Plaque-mine Senior High School. The contract and requisite bond executed by Surety were duly recorded as required by LSA-R.S. 38:2241, et seq. In accordance with a subcontract between Contractor and Subcontractor, the latter furnished materials and supplies for the job. Upon completion of its work, Subcontractor did not receive payment in full and filed a lien together with the required sworn claim in the aggregate of $30,583.00. Contractor then paid $7,000.00 on the account and declined to pay the balance, despite amicable demand. Subcontractor instituted this action to recover the balance of $23,583.00, together with 10% thereon as attorney’s fees pursuant to LSA-R.S. 38:2246, which provides:

“After amicable demand for payment has been made on the principal and surety and thirty days has elapsed without payment being made, any claimant recovering the full amount of his recorded or sworn claim whether by concursus proceeding or separate suit, shall be allowed ten percent attorney’s fees which shall be taxed in the judgment on the amount recovered.”

After institution of suit, Contractor admitted owing, and paid Subcontractor, an additional $19,050.10. At trial, Subcontractor reduced its demand to the remaining $4,532.90, and obtained judgment against Contractor in that sum in addition to an award of $2,358.30 as attorney’s fees.

Appellants contend the applicable statute is penal in nature and must therefore be strictly construed. It is argued that a strict construction allows assessment of attorney’s fees only when the full amount of the sworn recorded statement is recovered by way of judgment. Alternatively, Appellants maintain that attorney’s fees should be limited to the amount recovered by judgment which, in this instance, would be 10% of $4,532.90 or $453.29.

The issue is one of statutory interpretation. Appellants correctly point out that a penal statute is subject to the rule of strict construction. Subdivision Planning Engineers, Inc. v. Manor Development Corp., 349 So.2d 247 (La.1977).

Criminal and penal statutes may not be extended by analogy but must, however, be given a construction commensurate with the plain meaning of their language in the light of their context and purpose. State v. Leak, 306 So.2d 737 (La.1975).

The obvious intent of subject statute is to encourage and promote amicable settlement of claims arising from public works contracts to the end that persons furnishing materials, supplies, and labor on such projects will be paid promptly, thus avoiding the inconvenience, delay and expense occasioned by litigation. The statute provides that “ . . . any claimant recovering the full amount of his recorded or sworn claim . . . shall be allowed ten percent attorney’s fees which shall be taxed in the judgment on the amount recovered.” The key provision is the phrase “claimant recovering the full amount of his recorded or sworn claim.” The statute does not specify that total recovery must be by judgment; neither does it expressly limit attorney’s fees to the sum actually awarded in judgment. It provides, in effect, that where the total amount of the claim is recovered, an additional 10% thereof, as attorney’s fees, shall be awarded in the judgment. (Emphasis by the court).

Considered in the light of the context and purpose of the statute, we find legislative intent to allow attorney’s fees where the claimant recovers the full amount of his sworn or recorded claim, either by judgment for the full amount, or by voluntary payment of part thereof by the debtor coupled with recovery by judgment of the balance.

The statute contemplates recovery of attorney’s fees where the debtor withholds or denies payment without cause, thus requiring the creditor to incur attorney’s fees associated with the filing of his claim and prosecution of suit thereon to effect collection. We find no merit in Appellants’ contention that our holding will discourage amicable settlements of such claims. On the contrary, we believe it will encourage amicable settlements because the creditor is aware he must collect the entire amount of his sworn or recorded claim or suffer diminution of the amount actually recovered to the extent of the attorney’s fees he must pay. By the same token, the debtor who knowingly resists payment of an accurate sworn or recorded claim, is cognizant that his obligation will be enhanced 10% in the form of attorney’s fees to the creditor collecting the full amount of his sworn or recorded claim.

We are aware of Super Construction Co., Inc. v. New Orleans Levee Board, 286 So.2d 134 (La.App. 4th Cir. 1973); R. J. Ducote Contractor, Inc. v. L. H. Bossier, Inc., 192 So.2d 179 (La.App. 1st Cir. 1966); and Normand Company v. Abraham, 176 So.2d 178 (La.App. 4th Cir. 1965), all of which we deem factually inapposite.

The trial court should have awarded attorney’s fees on the full amount of the sworn recorded claim involved herein. We note, however, that Subcontractor neither appealed nor answered the appeal taken by defendants. Under the circumstances we are unable to increase the award in plaintiff’s favor. LSA—C.C.P. article 2133; Arrow Construction Co., Inc. v. American Emp. Ins. Co., 273 So.2d 582 (La.App. 1st Cir. 1973).

The judgment is affirmed at appellant’s cost.

Affirmed.


author: COVINGTON, Judge.

text:
    David SCOTT v. Paul KOSBAB.
    No. 12400.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.

      John J. Coman, Jr., New Orleans, for plaintiff-appellee.
    Machen & Finch, L. Jay Me Creary, Sli-dell, for defendant-appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

This is a suit for money allegedly owed. The amount claimed is $1,200.00, said by the plaintiff to have been loaned by him to the defendant. From a judgment in favor of the plaintiff, the defendant appeals.

Plaintiff alleges that on March 2,1974, he loaned the defendant the sum of $1,200.00, which has not been repaid. Defendant’s answer was a denial that he had ever borrowed money from the plaintiff or that he owed anything to Scott.

On the trial, the plaintiff offered testimony to the effect that this was a loan, evidenced by a check to the defendant; the latter offered testimony that this was an investment, not a loan, and objected to the admissibility of the check. The lower court permitted the evidence, and concluded that the plaintiff had proved the loan of $1,200.00 and that the defendant still owed this sum to the plaintiff. It was stipulated at the trial that check number 557, dated February 27, 1974, to Paul M. Kosbab for $1,200.00, endorsed “For Deposit Only, Paul M. Kosbab”, was deposited in Mr. Kosbab’s account.

Appellant urges that the cancelled check of Mr. Scott to Mr. Kosbab was inadmissible under the holding in the case of In re Genin, 240 So.2d 46 (La.App. 4 Cir. 1970). There is no merit in this contention. In Genin, four checks that were cashed were admitted in evidence. It was only check stubs that were held inadmissible under LSA-C.C. art. 2249. A case relied upon by the Genin court indicates that the checks themselves are admissible; see Brown v. Pike, 34 La.Ann. 576 (1882). In Cunniffe v. Loch, 177 So. 77 (La.App.Orl.1937), the Court considered the check which evidenced the loan in reaching its decision. Moreover, it is implicit within LSA-C.C. art. 2243 that checks are admissible in evidence unless “the whole sum shall be expressed in figures.” The sum of $1,200.00 was also expressed in words in the check involved herein, so the check would not be inadmissible on that ground.

Appellant also urges that the plaintiff-appellee has not introduced the testimony of “one credible witness”, as required by LSA-C.C. art. 2277, to substantiate that he made a loan of $1,200.00 to the defendant-appellant. Appellant is in error; the testimony of the plaintiff can serve as that of “one credible witness” to meet this codal requirement. Burt v. Hebert, 338 So.2d 717 (La.App. 1 Cir. 1976). Mr. Scott’s oral testimony was clearly admissible pursuant to Article 2277. This testimony was corroborated by the check to Mr. Kosbab, which we have held to be admissible in evidence. Thus, the requisites of LSA-C.C. art. 2277 were satisfied.

Our settled law is that the findings of fact by a trial judge, particularly such findings as are dependent upon the credibility of witnesses, are entitled to great weight and will not be disturbed on appeal in the absence of manifest error. This rule is especially pertinent where the testimony, as in the instant case, is highly contradictory. LaJeune v. Flash Truck Line, Inc., 353 So.2d 296 (La.App. 1 Cir. 1977); Readco Industries, Inc. v. Myrmax Specialties, Inc., 236 So.2d 573 (La.App. 1 Cir. 1970), writ refused, 256 La. 865, 239 So.2d 362 (1970). Our review of the record satisfies us that the trial court committed no manifest error in accepting Mr. Scott’s assertion that the $1,200.00 was a loan to Mr. Kosbab.

From the evidence in the record, we are led to the definite conclusion that the transaction between Mr. Scott and Mr. Kosbab can only be regarded as a loan. See McGuire v. Woolridge, 23 So.2d 295 (La. App. 2 Cir. 1945), certiorari denied October 8, 1945.

Accordingly, we affirm the judgment of the trial court at the appellant’s costs.

AFFIRMED.


author: PONDER, Judge.

text:
    John KELLER et al. v. Jesse E. LeBLANC, II, et al.
    No. 12398.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.
    Robert Downing, Baton Rouge, of counsel for plaintiffs-appellants, John Keller, et al.
    Donald Zuber, and Ronnie Seale, Baton Rouge, of counsel for defendants-appellee, Jesse E. LeBlanc, II, et al.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appealed from the judgment, based on a jury verdict, dismissing their suit for damages allegedly arising from legal malpractice.

The issues are:

(1) Did an attorney client relationship exist; and

(2) If not, are defendants liable under the doctrine of negotiorum gestio. We affirm.

Plaintiffs, losers in a union election, employed Mr. LeBlanc, who associated Mr. Fu-gler, both attorneys, to contest the election. A fee was paid for this. Mr. Fugler prepared and filed a protest with the International Union. Plaintiffs represented themselves in the hearing, saying they could not afford to pay additional fees and expenses. Fugler received notice of the denial of the protest on August 6, 1974. From this point the accounts of the plaintiffs and of the defendants are widely divergent.

Mr. Fugler testified he sent letters to the plaintiffs stating that if they wanted to appeal to the Secretary of Labor they should notify him and pay the additional required fee. He sent a copy of this letter to LeBlanc who received it.

Plaintiffs denied receiving the letters, though properly addressed, and asserted that it was understood from the beginning that Fugler would appeal the denial of the protest. They testified they spoke to him over the telephone numerous times and met with him on August 14.

Fugler testified that he was absent from his office almost the entire month of August and was in North Carolina on the 14th. He offered telephone bills to corroborate this. Despite plaintiffs’ failure to advise him of their wishes, in order to protect their rights, he dictated to his secretary over the telephone a letter of appeal. She, unfortunately, sent the letter to the National Labor Relations Board instead of the Secretary of Labor. Someone in the Board’s office telephoned Fugler who had returned to his office, and advised him of the error but told him it was unnecessary to come to New Orleans to deliver the letter to the correct place; that he, the caller, would send it by interdepartmental messenger to the proper office. Instead the letter was sent by regular mail and arrived too late to be effective as an appeal.

The jury found that under the above circumstances there was no attorney-client relationship between the plaintiffs and the defendants. Because of the wide discrepancies in the testimony, the conclusion depends upon the credibility of the witnesses. The jury chose to believe the testimony of the defendants and their witnesses rather than that of the plaintiffs. We can find no error in that conclusion.

Plaintiffs next contend that even if no attorney-client relationship existed defendants nevertheless are liable under the theory of negotiorum gestio.

No instruction of this theory was requested of the court to be given to the jury and no objection was made of the court’s failure to give such an instruction.

La.C.C.P. Art. 1793 reads in part as follows:

“A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating specifically the matter to which he objects and the grounds of his objection.”

At any rate we find the contention unavailing. The relationship between an attorney and his client, a special type, is purely contractual in nature and results only from a clear and express agreement of the parties. Delta Equipment and Constr. Co. v. Royal Indemnity Co., 186 So.2d 454 (La.App. 1st Cir. 1966).

For these reasons we affirm the judgment at appellants’ costs.

AFFIRMED.


text:
    BIBBINS & RICE ELECTRONICS, INC. v. SERVICE MACHINE & SHIPBUILDING CORP.
    No. 12401.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.

      Dale H. Hayes, Leonard & Hayes, Morgan City, counsel for plaintiff.
    Andrew Reed, Aycock, Horne, Caldwell, Coleman & Duncan, Morgan City, counsel for defendant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the judgment dismissing its claim for increased payment on a contract.

The issue is the validity of the holding that defendant was not liable beyond the contracted price.

We affirm.

Plaintiff bid on some electronic equipment for a ship defendant was building on contract. Defendant used this bid in entering into the contract. Seven months later plaintiff advised defendant of an increase in prices. Defendant, after consulting with its client, agreed to this price increase but advised there would be no approval on further increases. Before the equipment was installed, plaintiff, by general circular, advised of additional increases. Defendant made no response. After several change orders were approved and after the equipment was installed, plaintiff billed defendant at the increased prices. Defendant paid the bill except for the increases in the price of the equipment originally contracted for.

Plaintiff relies upon quantum meruit, upon an escalation clause in the bid documents and on an implied contract arising from the change orders, adding and deleting equipment.

Plaintiff asserts that there was no contract because there was no meeting of the minds on price citing LSA-C.C. Arts. 1779, 2439, and 2464. The lower court found that there was a contract and we agree. The facts that the prices to plaintiff from its supplier rose, that one price increase was approved and that change orders were made do not militate against the fact that the parties agreed to the price of the thing and signed a contract. We agree with the trial judge that there was a contract.

The contract contained the following provision:

“Prices are' based on existing tariff, duty and exchange rates and may be varied in accordance with any change in those rates between the date hereon and the shipping date.”

The lower court found the provision inapplicable because plaintiff did not prove that the price increase was caused by variation in the tariff, duty or exchange rate. There is evidence to support this conclusion and we therefore find no error.

The plaintiff’s contention is that there was an implied contract for the sale of the thing at the increased prices. We find there was a contract. We believe in like manner that that contract was not impliedly amended so as to be at the higher prices. Defendant agreed to one price increase and paid that amount. It gave notice at that time that no further increases would be approved and none were either expressly or impliedly. We find Stupp Corp. v. Con-Plex, Div. of U.S. Industries, 344 So.2d 394 (La.App. 1st Cir. 1977) inapplicable.

For these reasons the judgment is affirmed at appellant’s costs.

AFFIRMED.

      . LSA-C.C. Art. 1779:
      “Four requisites are necessary to the validity of a contract:
      “1. Parties legally capable of contracting.
      “2. Their consent legally given.
      “3. A certain object, which forms the matter of agreement.
      “4. A lawful purpose.”

      . LSA-C.C. Art. 2439:
      “The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself.
      “Three circumstances concur to the perfection of the contract, to wit: the thing sold, the price and the consent.”

      .LSA-C.C. Art. 2464:
      “The price of the sale must be certain, that is to say, fixed and determined by the parties.
      “It ought to consist of a sum of money, otherwise it would be considered as an exchange.
      “It ought to be serious, that is to say, there should have been a serious and true agreement that it should be paid.
      “It ought not be out of all proportion with the value of the thing; for instance the sale of a plantation for a dollar could not be considered as a fair sale; it would be considered as a donation disguised.”


author: SARTAIN, Judge.

text:
    Dr. James G. RAGAN et al., Plaintiffs-Appellees, v. Kenneth C. SCULLIN, Defendant-Appellant.
    No. 12403.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.

      F. Barry Marionneaux, Plaquemine, of counsel for defendant-appellant, Kenneth C. Scullin.
    Dennis Whalen, Baton Rouge, of counsel for third party plaintiffs-appellees, Joseph R. Raggio & John H. Taylor and Taylor and Raggio, partnership.
    Steve LeBlanc, Baton Rouge, of counsel for plaintiffs-appellees, Dr. James Ragan, Dr. John H. Green and Dr. James Gann.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

In this suit the plaintiffs are three experts who seek payment from an attorney, Kenneth C. Scullin, for work performed on the latter’s behalf in preparation for litigation. From an adverse judgment in the district court, Scullin has appealed. We affirm.

We adopt with approval the following portions of the trial judge’s written reasons for judgment:

“The evidence in this case proves that plaintiffs were hired to do certain work of an expert nature to assist defendant, Kenneth C. Scullin, in the preparation and prosecution of a lawsuit in the United States District Court, Eastern District. The testimony of John Taylor and Joseph Raggio convinces the Court that they (and their firm of Taylor & Raggio) were to do most of the ‘leg’ work on the case and that they were to handle any motions and preliminary matters; and that Kenneth Scullin would advance whatever monies were needed for expert witness costs.
“The Court finds that Kenneth Scullin alone is liable for the payment of plaintiffs’ fees.
“Dr. John H. Green, Professor of Biology at Nichols State University, testified that he was required to spend time reading some of Dr. Ragan’s material in order to familiarize himself with the area of research; that he spent several days in the university’s library; that he had to find and read several publications; that on two occasions he was required to do research in Baton Rouge at the L.S.U. library; and that it took him about one full day to prepare a rough report for Dr. Ragan. He also testified that all of this work consumed eight days.
“Prior to doing any work on the matter, Dr. Green had been told by Dr. Ra-gan that he (Ragan) was being paid at the rate of $125 per day. Dr. Green telephoned defendant, Scullin, and was told to begin work and let Dr. Ragan know the number of days worked. If it had been defendant’s intent to pay Dr. Green at a rate different from that being paid to Dr. Ragan, it was not discussed. The only conclusion that this Court can reach is that the rate of pay was intended to be the same for both Dr. Ragan and Dr. Green. Therefore, Dr. Green is entitled to a judgment against defendant, Kenneth C. Scullin, in the amount of ONE THOUSAND AND NO/lOO ($1,000.00) DOLLARS, with interest from date of demand.
“The evidence regarding the charges of Dr. Jimmy Gann, a professor of Micro-Biology at Nichols State University, is clear, convincing and not challenged. His judgment is in the amount of THREE HUNDRED AND NO/100 ($300.00) DOLLARS and is against the defendant, Kenneth C. Scullin.
“Dr. James Ragan, a professor at Nichols State University, testified at length regarding his arrangements with defendant and the time which he spent on the work. The evidence shows that Ragan was hired at the rate of $125 per day. The defendant maintains that the fee of Dr. Ragan was to be contingent on the outcome of the lawsuit in the United States District Court and that the fees of Drs. Green and Gann were to be on a cash basis. John Taylor testified that he was asked by Scullin to speak with Dr. Ragan regarding a contingency fee arrangement. Taylor stated he discussed the matter with Dr. Ragan and that Ragan declined. Raggio’s testimony on this point is essentially the same.
“Hence, the Court finds that Dr. Ragan did not enter into a contingent fee contract with defendant, Kenneth C. Scullin.
“Dr. Ragan’s testimony concerning his work and the time expended on it was quite lengthy and detailed. But, a careful study of that testimony reveals only a total of 36 days, not 41 as claimed by the witness. The Court is aware that Dr. Ragan may have done work which he has forgotten; however, from his testimony in Court, it appears that the total number of days worked amounted to 36, which multiplied by $125 equals FOUR THOUSAND FIVE HUNDRED AND NO/100 ($4,500.00) DOLLARS. This is the amount to which Dr. Ragan is entitled to judgment against defendant, Kenneth C. Scullin.
“Exhibit number 2 offered by defendant is a letter in which Dr. Ragan offers to accept the sum of $1,200.00 in compromise. It was simply an offer by Dr. Ragan to compromise his claim for less than he was due. It is of no importance to the case.
“All third party- actions are dismissed for the reasons contained above. Defendant, Kenneth C. Scullin, is cast for all costs.”

The only issue not directly addressed by the judge a quo is the averred liability of Scullin’s former law partner, Jack P. F. Gremillion, Jr. The record reflects that the lawsuit in connection with which the plaintiffs were engaged was filed on March 25, 1971, by Scullin as a member of the partnership of Scullin and Gremillion. By notarial act dated July 11, 1972, Scullin transferred to Gremillion all the rights, title and interest that he had in any litigation filed in the partnership name of Scullin and Gremil-lion. Scullin contends that the above acts prove that the fees herein sought by the plaintiffs are debts of the partnership and that Gremillion is liable for one-half of any amount for which he (Scullin) is held.

We note, however, the following facts: The experts were not hired until many months after the association between Scul-lin and Gremillion was severed; there is no evidence whatsoever which indicates that Gremillion participated in any way in the suit from at least November of 1971 forward; prior to conveying his rights and interest in the partnership to Gremillion, Scullin had the clients in the particular suit with which we are concerned enter into retainer contracts with another attorney, Joseph R. Raggio. Even Scullin admitted that Gremillion had no interest in the subject lawsuit. These facts overwhelmingly refute any liability on the part of Gremil-lion or the partnership of Scullin and Grem-illion.

Lastly, Dr. Ragan urges that the trial judge erred in the computation of his award and that the same should be increased. This issue is not before us as he neither appealed nor answered Scullin’s appeal. C.C.P. art. 2133; Audubon Coin & Stamp Co. v. Alford Safe & Lock Co., 230 So.2d 278 (La.App. 1st Cir. 1969).

For the above reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.


text:
    Neldon J. FINN et al. v. Douglas EOFF et al.
    No. 12408.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.

      Anthony Glorioso, New Orleans, counsel for plaintiffs.
    Iddo Pittman, Jr., Hammond, counsel for Douglas Eoff & John Yent.
    William E. Crawford, Baton Rouge, for Bernice Edwards.
    John Q. Mitchell, in pro. per.
    Milburn R. Fletcher, in pro. per.
    Before LANDRY, SARTAIN and CHI-ASSON, JJ.
   SARTAIN, Judge.

This is a suit by plaintiffs, Neldon J. Finn, Gloria F. Garcia, Iris F. Simoneaux and Ranal D. Finn, to obtain judicially a servitude of passage from their allegedly enclosed property to the nearest public road. Named as defendants are the owners of the surrounding properties.

Plaintiffs are the owners of a certain tract of rural land consisting of approximately 40 acres in Tangipahoa Parish. In their petition they allege that the property is completely enclosed and has no access to a public road, and that they are entitled to a servitude of passage across their neighbors’ property under LSA-C.C. art. 699. Additionally, plaintiffs contend that the shortest and least injurious route to the nearest public road is in a westerly direction across the properties of two of the defendants, Douglas Eoff and John Yent, to an allegedly public gravel road which leads to the Brown road. Plaintiffs also allege that Eoff and Yent have constructed a pond across the proposed right of way, and pray that the court order that the pond be filled in.

Defendants, Eoff and Yent, denied plaintiffs’ allegations, contending that other defendants had offered to sell property to plaintiffs which would afford them a right of passage to a public road. Additionally, Eoff and Yent denied that the gravel road on their properties is a public road, and they denied that the shortest and least injurious route to a public road is across their property. The remaining defendants filed general denials.

At trial, two of the defendants, Edward E. Cosgrove, Sr. and Milburn Fletcher, testified that they were each willing to sell a right of way to plaintiffs across their properties to nearby roads, i. e. the Thibodeaux road and Sibley road respectively. The trial court, without assigning reasons, rendered judgment in favor of defendants dismissing plaintiffs’ suit. From this adverse judgment, plaintiffs have appealed.

Two principal issues are presented on appeal: 1) plaintiffs’ right vel non to a servitude of passage; and 2) the location of and compensation for the servitude, if one is owed.

I.

Plaintiffs’ claim to a servitude of passage is founded on LSA-C.C. art. 699, which provides:

“The owner whose estate is enclosed, and who has no way to a public road, railroad, or a tramroad may claim the right of passage on the estate of his neighbor or neighbors to the nearest public road, railroad, or a tramroad and shall have the right to construct a road, railroad or tramroad according to circumstances and as the exigencies of the case may require, over the land of his neighbor or neighbors for the purpose of getting the products of his said enclosed land to such public road or railroad, tramroad or for the cultivation of his estate, but he shall be bound to indemnify his neighbor or neighbors in proportion to the damage he may occasion.” (Amended by Acts 1970, No. 672, sec. 1).

Enclosed estates within the meaning of the article are such lands that are shut off from access to public roads, etc. because they are entirely surrounded by other lands. English Realty Company, Inc. v. Meyer, 228 La. 423, 82 So.2d 698 (1955).

The testimony and evidence admitted at trial, including plats depicting plaintiffs’ property, amply established that plaintiffs’ property is surrounded on all sides by other lands owned by the various defendants and, by virtue of this enclosure, that it does not have access to a public road.

Nonetheless, defendants, Eoff and Yent, argue that plaintiffs’ property is not enclosed because other defendants have offered to sell a portion of their property to plaintiffs and thereby allow plaintiffs access to a public road. Eoff and Yent maintain that the necessity for a servitude of passage has not been established.

We do not agree. The availability of additional property which, if purchased, would provide access to a public road does not in any fashion alter the fact that plaintiffs’ property is enclosed and that it does not have access to a public road. The Civil Code provides a legal servitude to property owners in plaintiffs’ situation.

The necessity for this servitude is evident from the facts, namely that plaintiffs as the situation is at present are denied the use of their property because of the lack of access. The Supreme Court in Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1970), recognized the importance of the servitude to the landowner by allowing full utility of his land and to the public by keeping valuable property in commerce.

Accordingly, we find that the plaintiffs are entitled to a servitude of passage, and that the trial court erred in dismissing their suit.

II.

The location of the servitude of passage is provided for in LSA-C.C. art. 700 as follows:

“The owner of the estate, which is surrounded by other lands, has no right to exact the right of passage from which of his neighbors he chooses.
“The passage shall be generally taken on the side where the distance is the shortest from the inclosed estate to the public road.
“Nevertheless, it shall be fixed in the place the least injurious to the person on whose estate the passage is granted.”

The mandatory language of the article is modified by the term “generally” as an acknowledgment that there are exceptions to the general rule that the passage shall be taken on the side where the distance is shortest to a public road. Rockholt v. Keaty, supra. See Morgan v. Culpepper, 324 So.2d 598 (La.App. 2nd Cir. 1975).

There are three roads in the vicinity of plaintiffs’ property. These are: the Thibo-deaux road to the east; the Brown road to the west; and the Sibley road to the north.

Plaintiffs have contended consistently that the nearest public road is a gravel road on the properties of Eoff and Yent which intersects with the Brown road. Plaintiffs urge that the servitude of passage be taken over the properties of Eoff and Yent to this gravel road.

Evidence at trial established that only a portion of the gravel road was public and that the public portion commenced at a distance of between 1100 and 1200 feet from plaintiffs’ property. Other evidence indicated, though not with any degree of certainty, that the Sibley road and possibly the Thibodeaux road (at a distance of 1158 to 1180 feet from plaintiffs’ property) were at a closer proximity to plaintiffs’ property than the proposed route to the Brown road.

Due to the paucity of relevant evidence in the record we are unable to determine which property should be burdened with the servitude of passage as well as the exact route it should take across the burdened property.

Therefore, we must remand the case to the district court for it to determine and fix the location of the servitude, and additionally assess the amount of indemnification owed.

For the above reasons, the judgment of the trial court is reversed, and the case is remanded to fix the location of the servitude of passage and to determine the indemnification due.

Costs of this appeal are assessed against the defendants. All other costs are to await a final determination of the case on the merits.

REVERSED AND REMANDED.

      . LSA-C.C. arts. 699 and 700, along with the remainder of the codal sections dealing with servitudes, were amended by La. Acts 1977, No. 514, sec. 1 (effective January 1, 1978). The substance of these articles is contained presently in LSA-C.C. arts. 689 and 692, as amended respectively.
      For the purposes of the present suit, which was filed prior to the effective date of the 1977 amendments, we are concerned with articles 699 and 700 as they appeared prior to the amendments.
      We do however wish to note that the result reached herein would be the same were we to apply the articles as amended, inasmuch as the 1977 amendments did not change the law applicable in this case.


text:
    Fred J. PLEASANT v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 12589.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.
    William D. Grimley, Baton Rouge, for plaintiff-respondent.
    Aubrey L. Moore, Baton Rouge, and Gordon Crawford, Gonzales, for defendant-relator.
    Before CHIASSON, EDWARDS and SARTAIN, JJ.
   SARTAIN, Judge.

We granted a writ in this cause to consider the validity of a district court’s ex parte order transferring plaintiff’s action to another venue.

The facts leading up to the instant controversy are not in dispute. Plaintiff instituted the original action in the 23rd Judicial District Court for the Parish of Ascension. Defendants answered and discovery procedure was commenced. Thereafter plaintiff submitted to the district judge an ex parte order decreeing that this action be transferred to the 19th Judicial District Court in East Baton Rouge Parish.

The defendants then filed a motion in the East Baton Rouge Parish court seeking to have the case transferred back to the Ascension Parish court. Plaintiff opposed the motion on the grounds that the East Baton Rouge Parish court was without authority to review the order of the Ascension Parish court.

Although we have no written or oral reasons from the East Baton Rouge Parish court, we glean from the pleadings filed therein that the judge of that court agreed with the position taken by the plaintiff and declined to order the matter re-transferred to the Ascension Parish court. We agree with the position taken by the East Baton Rouge Parish court as to do so would have put that court in a position of reviewing a decision of a sister court. However, we disagree with the ex parte order entered by the Ascension Parish court.

C.C.P. art. 123 provides as follows:

Art. 123. Forum non conveniens
For the convenience of the parties and the witnesses, in the interest of justice, a district court upon contradictory motion, or upon the court’s own motion after contradictory hearing, may transfer a civil case to another district court where it might have been brought, provided, however, that no suit brought in the parish of which the plaintiff is domiciled, and which court is otherwise a court of competent jurisdiction and proper venue, shall be transferred to any other court pursuant to this article.

The article by its specific terms decrees that a motion for change of venue can be granted only upon and after a contradictory motion and hearing.

Accordingly, for the above reasons, the writ previously issued herein is made peremptory and the order of the 23rd Judicial District Court for the Parish of Ascension dated October 2, 1978, ordering this suit transferred to the 19th Judicial District Court for the Parish of East Baton Rouge is hereby rescinded, recalled and vacated and this cause is hereby remanded to the 23rd Judicial District Court for further proceedings in accordance with law. All costs relating to the change of venue are assessed against the plaintiff. All other costs are to await a final determination on the merits.

WRIT MADE PEREMPTORY, REVERSED AND REMANDED.


author: CHIASSON, Judge.

text:
    Isiah LANG v. DAIRYLAND INSURANCE COMPANY et al.
    No. 12396.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.

      Walter C. Dumas, Baton Rouge, for plaintiff-appellant, Isiah Lang.
    R. Michael Caldwell, Baton Rouge, for defendants-appellees, Dairyland Insurance Co., et al.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

Isiah Lang brought suit for damages against Desmond Roddy, Dairyland Insurance Company, and Thomas H. Brown. On March 2, 1977, Thomas H. Brown was driving a pickup truck, owned by Desmond Rod-dy and insured by Dairyland Insurance Company, when he struck an automobile owned by Isiah Lang. Defendants-appel-lees, Desmond Roddy and Dairyland Insurance Company, after answering the suit, filed a motion for summary judgment. The trial court granted the motion for summary judgment and dismissed Isiah Lang’s claim against these defendants. From this judgment Isiah Lang has taken this appeal.

We must determine whether summary judgment was appropriate in this case. La.C.C.P. art. 966 provides for a summary judgment when no genuine issue exists as to a material fact and the moving party is entitled to judgment as a matter of law. The burden is on the mover to show that there is no dispute regarding facts material to the suit. And since the motion for summary judgment is not a substitute for a trial on the merits, any doubt as to the existence of a material factual issue is to be resolved against the granting of a summary judgment and in favor of a trial on the merits. Wilkinson v. Husser, 154 So.2d 490 (La.App. 1st Cir. 1963), writ refused, 245 La. 60, 156 So.2d 603. Parker v. South Louisiana Contractors, Inc., 340 So.2d 322 (La.App. 1st Cir. 1976).

In the instant case the motion for summary judgment was filed with supporting affidavits. Desmond Roddy and Dairyland Insurance Company argued in their motion that because Thomas H. Brown operated the pickup truck without the permission of either Desmond Roddy or his daughter and permittee, Tammy Roddy, that Brown was not an insured under the policy issued by Dairyland to Desmond Roddy.

The policy specifies the following as an insured under the policy:

4A.(l)(b)(ii) “any other person while using such automobile with the permission of the individual named insured, provided his actual operation (or, if he is not operating, his other actual use) thereof is within the scope of such permission, and”

Under this provision of the policy appellees argue that in order for Thomas R. Brown to be covered, he must have had either Desmond Roddy’s permission or Tammy Rod-dy’s permission to use the pickup truck. Appellees conclude that, without permission, Thomas H. Brown would not come within the coverage of the policy and therefore Desmond Roddy and his insurer Dairy-land Insurance Company would not be liable.

The affidavits submitted by the appellees attempt to negate any connection between them and the accident, but the affidavits do not address all of the facts and issues that are involved in the lawsuit. The record reveals that on March 2, 1977, Tammy Rod-dy, Desmond Roddy’s daughter, had her father’s permission to use his pickup truck to go to Earl K. Long Charity Hospital in Baton Rouge and that she was accompanied by Thomas H. Brown. The appellees’ affidavits reveal at most that no express permission was given to Thomas H. Brown by either Desmond Roddy or Tammy Roddy.

We have reviewed the record and find insufficient facts to support a conclusion that a summary judgment is appropriate in this instance. We find the following facts in dispute: whether Thomas H. Brown had the implied permission of either the owner of the truck, Desmond Roddy, or Tammy Roddy to use the truck; how Thomas H. Brown obtained possession of the truck; and whether Tammy Roddy and/or her daughter, Joan P. Roddy, were/was in the truck with Thomas H. Brown when the accident occurred. We find that the movers have filed to carry their burden of showing that there is no genuine issue as to a material fact and that movers are entitled to judgment as a matter of law.

For the foregoing reasons, we reverse the trial court’s judgment and remand the case for further proceedings not inconsistent with the views expressed herein.

The defendants-appellees are cast for all costs of this appeal; all other costs are to await the final determination of the action.

Having found that movers, Desmond Roddy and Dairyland Insurance Company, have failed to meet their burden of proof for obtaining a summary judgment, we pre-termit any other questions raised by this appeal.

REVERSED AND REMANDED.


text:
    GLAZER STEEL CORPORATION v. LAROSE SHIPYARD, INC. and George Engine Company, Inc.
    No. 12585.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.

      Francis A. Ledet, Houma, Ira J. Middle-berg, New Orleans, for petitioner and appellant.
    John J. Erny, Jr., Larose, for defendant and appellee, Larose Shipyard, Inc.
    William S. Poole, Jr., of Adams & Reese, New Orleans, for defendant and appellee, George Engine Co.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

This is a motion to dismiss an appeal from an interlocutory judgment granting a declinatory exception of improper venue and transferring the case from Lafourche to Jefferson Parish. Article 2083 of the Code of Civil Procedure provides that appeals may be taken from final judgments or from interlocutory judgments which may cause irreparable injury. Judgments maintaining exceptions of improper venue have been classified as interlocutory in nature. However, our courts have permitted appeals from such interlocutory judgments when there was a reasonable chance of irreparable injury being caused thereby.

The question presented is whether there is a reasonable chance of irreparable injury to this plaintiff by the change of venue order. Under La.R.S. 9:5801 when a petition is filed in an improper venue, prescription is interrupted as of the date of service of process upon the defendant and not upon the date of the filing of the petition.

Plaintiff-appellant, Glazer Steel Corporation, argues if the case is left in its original venue, plaintiff’s claim against the defendant-appellee, George Engine Company, Inc., is timely, whereas if the case is transferred to a different venue because of the prescription statute, part of plaintiff’s claim is not timely. As we appreciate the plaintiff’s argument the very existence of his total claim rests on the correctness of his choice of venue. We find that there is the potential for irreparable injury to the plaintiff in this case and believe that the interests of justice are best served by allowing plaintiff his appeal from this interlocutory judgment which may cause irreparable injury.

For these reasons the motion to dismiss is denied at mover’s costs.

MOTION DENIED.

      . and

      . See McGowan v. Gomez, 254 So.2d 307 (La.App. 4th Cir. 1971) and cases cited therein.


author: EDWARDS, Judge.

text:
    Panithia Van Diver JOHNSON, Ind., etc. v. The GREATER BATON ROUGE AIRPORT DISTRICT et al.
    No. 12424.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 1979.

      Robert R. Rainer, Baton Rouge, of counsel for plaintiff-appellant, Panithia Van Diver Johnson.
    L. Michael Cooper, Baton Rouge, of counsel for defendants-appellees, Associated Aviation Underwriters & Fidelity and Cas. Co. of New York and City of Baton Rouge and Parish of East Baton Rouge.
    Horace C. Lane, Baton Rouge, of counsel for defendant-appellee, United Fidelity and Guaranty Co.
    Joel E. Gooch, Lafayette, of counsel for defendants-appellees, The Greater Baton Rouge Airport Dist., Reserve Ins. Co., D. R. Gianelloni, City of Baton Rouge and Parish of East Baton Rouge.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

This is a tort suit. Plaintiff, Panithia Van Diver Johnson, individually and as natural tutrix of her minor son, Thomas A1 Van Diver, Jr., and intervenor, United States Fidelity and Guaranty Company, appeal an adverse judgment of the trial court which dismissed their claims against defendants, Greater Baton Rouge Airport District, Parish of East Baton Rouge, City of Baton Rouge, Associated Aviation Underwriters, the Fidelity and Casualty Company of New York and Reserve Insurance Company, on a motion for summary judgment.

Thomas Al Van Diver, Jr., a sixteen year old, was injured on August 31, 1975, while operating a tractor with mowing equipment at Ryan Airport as a part of his employment by Ted Hicks. Van Diver had been sent to the airport by Hicks pursuant to an oral agreement between Hicks and the Greater Baton Rouge Airport District, whereby Hicks was allowed to mow certain grassy areas at Ryan Airport and in return was allowed to keep any hay produced by the mowing operation.

Similar agreements had been entered into between the airport and other individuals. The airport required that evidence of insurance, including workmen’s compensation coverage, be provided before any work was undertaken.

This tort suit was filed on behalf of Van Diver against The Greater Baton Rouge Airport District, Parish of East Baton Rouge, City of Baton Rouge and their insurers, Associated Aviation Underwriters, the Fidelity and Casualty Company of New York and Reserve Insurance Company. Suit was also instituted against D. R. Gia-nelloni and Thomas Goudeau as executive officers of the airport.

United States Fidelity and Guaranty Company, Hicks’ compensation insurer, intervened to recover compensation payments.

The governmental defendants and their insurers filed a motion for summary judgment to dismiss plaintiff’s suit and the intervention, contending that the airport is the statutory employer of Van Diver under LSA-R.S. 23:1061 and that plaintiff’s exclusive remedy is under the workmen’s compensation act.

The trial court granted the motion for summary judgment and dismissed plaintiff’s suit and the intervention.

The threshold question presented is whether a governmental entity may avail itself of the statutory employer defense (commonly referred to as a section six defense) and the attendant exclusivity of the compensation remedy to defeat a tort claim. See LSA-R.S. 23:1032 and LSA-R.S. 23:1061.

Plaintiff argues that such a defense is not available and cites LSA-R.S. 23:1034, which provides in pertinent part:

“The provisions of this Chapter shall apply to every person in the service of the state or political subdivision thereof, or of any incorporated public board or commission authorized to hold property and to sue and be sued, under any appointment or contract of hire, express or implied, oral or written, except an official of the state or other political subdivision thereof or of any such incorporated public board or commission; and for such employee and employer the payment of compensation according to and under the terms, conditions, and provisions set out in this Chapter shall be exclusive, compulsory, and obligatory; provided that one employed by a contractor who has contracted with the state or other political subdivision, or incorporated public board or commission through its proper representative, shall not be considered an employee of the state, or other political subdivision, or incorporated public board or commission . . . ”

In W. Malone, Louisiana Workmen’s Compensation Law and Practice (1951), Professor Malone in discussing the issue sub judice stated in section 144:

“A private concern engaged in a hazardous business is liable for compensation to the employees of an independent contractor hired to carry out a part of the regular business of the principal. Is this true of public bodies which operate through independent contractors? The concluding sentence of Paragraph One of Section One of the Act (LSA-R.S. 23:1034) reads as follows:
‘One employed by an independent contractor who has contracted with the State * * * (or its political subdivision or municipal corporation)
‘through its proper representatives shall not be considered an employee of the State * * * ’ (or political subdivision, etc.).
In view of the fact that the employee of an independent contractor is never to be regarded as the direct employee of the principal, the question arises as to why this express provision was included. The answer seems to lie in the fact that the claimant who is a direct public employee enjoys certain advantages which are not accorded a private employee (such as the right to recover even though the operations of the public employer are not hazardous or the work done is not a part of the employer’s regular business). The legislature felt that no sound policy would be served by extending these special advantages to the employees of private concerns acting as independent contractors for a public body principal. In fact, such an extention might give rise to a situation wherein the public body principal would be liable for compensation to the employee of an independent contractor without enjoying the correlative right of claiming indemnity from the intermediary contractor, which would frustrate the basic policy underlying Section Six of the Act.
“It follows that if an employee of an independent contractor hired by a public body is to recover from the latter, he must show that the contract was for the execution of hazardous work and that it covered a part of the regular business of the public body. The purpose of the provision of the Act set forth above is to insure this result and to place public and private employers on the same footing in this respect.
“There is no suggestion in the Act that the provisions of Section Six creating a principal’s compensation liability are not fully applicable to public and private employers alike, and the matter has been decided favorably to the employee of a contractor in a well considered opinion in Washington v. Sewerage and Water Board.” (footnote omitted).

The case of Washington v. Sewerage and Water Board of New Orleans, 180 So. 199 (La.App.Orl.Cir.1938), cited with approval by Professor Malone, involved a claim by the widow and children of William Washington for workmen’s compensation benefits against the Sewerage and Water Board. The court found that the deceased was not an employee of the board but rather was an employee of the Federal Emergency Relief Administration (ERA) which had contracted with the board to build certain sewer works. However, the court determined that plaintiffs were entitled to recover compensation from the board under section six (now LSA-R.S. 23:1061) because the board was the principal (statutory) employer of the deceased. The court reasoned:

“It seems to us that the correct construction to be placed upon the provisions of (LSA-R.S. 23:1034 and LSA-R.S. 23:1061) is that, if a state board, political subdivision, etc., lets out work by contract, which is of a character essential to its business, then it is liable to the employee of the independent contractor in compensation . . . . In other words, the employee of the contractor must prove such facts as would have entitled him to compensation if the suit had been brought against his employer.” (180 So. 199, 205).

This court in Richard v. National Surety Corporation, 99 So.2d 831 (La.App. 1st Cir. 1957), was confronted with the same issue presented in the instant case. In Richard, we maintained an exception of no cause of action and upheld the statutory employer defense asserted by the City of Lafayette in a tort suit. The city proved that the deceased was an employee of a contractor of the city in connection with the performance of work which was part of the regular trade and business of the city so as to preclude the plaintiff from recovering in tort.

Plaintiff argues that the case of Book v. Police Jury of Concordia Parish, 59 So.2d 151 (La.App. 2nd Cir. 1952), is authority to deny the statutory employer defense to public employers.

We do not agree. The court in Book found expressly that the relationship of principal and contractor did not exist and that LSA-R.S. 23:1061 was therefore not applicable. Accordingly any inference in Book that a governmental entity could not be a statutory employer is mere obiter dictum.

We believe that the defense is available to the governmental entities in this case.

The next question for review is whether the governmental defendants have established that they are the statutory employer of Van Diver and are entitled to summary judgment.

LSA-R.S. 23:1061 provides:
“Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him . . .

The depositions on file in this suit show unquestionably that a verbal contract existed between the airport as “principal” and Hicks as “contractor”, whereby Hicks mowed certain grassy areas at Ryan Airport and in return was allowed to keep any hay produced by the mowing operation.

Additionally we find that there is no genuine issue of material fact to oppose the determination that the work being performed by Hicks was an integral part of the airport’s trade, business or occupation. The work being performed at the time of the accident was maintenance work necessary for the proper operation of the airport. The deposition of Thomas Goudeau, the airport’s maintenance supervisor, established that it was necessary for the airport to keep the grassy areas mowed to a certain height as a part of routine maintenance. He testified that the airport had the necessary equipment and personnel to mow the areas in question. He further testified that the airport had in the past mowed these areas, and, were it not for the agreements such as the one with Hicks, that the airport would continue to mow these areas.

Plaintiff contends that we should characterize the work being performed by Van Diver as the cutting of hay rather than the mowing of grass. As such, plaintiff argues, this work was not a part of the trade, business or occupation of the airport. As we have indicated above, the distinction asserted by plaintiff is purely academic in view of the undisputed evidence, including the deposition testimony of Van Diver, that the accident occurred while the grass was being cut.

Our review of this record indicates clearly to us that there is no genuine issue of material fact to be resolved and that the trial court was correct in granting the summary judgment.

For the above reasons, the judgment appealed is affirmed at appellants’ cost.

AFFIRMED.

      . Defendant, Gianelloni, also filed a motion for summary judgment, which was denied by the trial court.


author: SCHOTT, Judge.

text:
    Bryan J. GUILLOT v. TOWN OF LUTCHER et al.
    No. 10236.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 8, 1979.

      Martin, Himel, Peytavin & Nobile, John L. Peytavin, Lutcher, for defendants-appel-lees.
    Talbot, Sotile, Carmouehe, Waguespack & Marchand, Vincent J. Sotile, Donaldsonville, for plaintiff-appellant.
    Before GULOTTA, STOULIG and SCHOTT, JJ.
   MOTION TO DISMISS

SCHOTT, Judge.

Plaintiff brought suit against the town of Lutcher and its officials for an injunction to prevent them from interfering with his car wash business, a declaratory judgment that an ordinance which declared his business to be a public nuisance was unconstitutional and illegal; and a mandamus directing defendants to provide him with a license and water utility service. He obtained a temporary restraining order on February 6, 1978, and on February 13 the case was tried on a stipulation that the preliminary and permanent injunctions would be tried together.

The judgment appealed from was signed on September 11, 1978. Therein plaintiff’s suit was dismissed with the proviso that he was to cease the operation of his business within 120 days from the date of the judgment. Plaintiff petitioned for and obtained “a suspensive appeal, or alternatively devol-utive appeal” from the judgment.

The case is now before us on a motion by defendants to dismiss plaintiff’s suspensive appeal with no prejudice to his devolutive appeal.

The same question was before the court in Murry v. City of Oakdale, 276 So.2d 368 (La.App. 3rd Cir. 1973).

The plaintiff whose case has been denied in final judgment is entitled to a suspensive appeal as a matter of law. On the other hand, defendants have no reason for concern over the appeal being suspen-sive. Since there is no injunction in effect, the suspensive appeal accomplishes nothing for plaintiff since there is in reality nothing to suspend. Nothing prevents defendants from taking action even though plaintiff has taken a suspensive appeal.

The motion is denied.

MOTION DENIED.


author: WALKER, Justice, for the Court:

text:
    Lee Edward COLLINS v. STATE of Mississippi.
    No. 50924.
    Supreme Court of Mississippi.
    Feb. 14, 1979.
    Rehearing Denied March 21, 1979.
    John C. Webb, Sidney J. Martin, Green-ville, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice, for the Court:

A jury in the Circuit Court of Washington County convicted Collins of armed robbery. He was sentenced to twenty-five years in the penitentiary. On appeal Collins contends only that the trial court committed reversible error by granting a state instruction which omitted elements of the crime of robbery.

At trial, when the instruction was introduced, appellant objected stating:

The defense objects on the basis that it does not constitute a full nor clear definition of the crime of armed robbery and that it does not contain the factual element of the crime as set forth according to the statute, according to the case law interpreted thereof and consequently, since there is no other instruction defining the crime of armed robbery, that is anyway curative thereof; the instruction is insufficient.
BY THE COURT:
The Court is going to grant the instruction by deleting from it the words “by violence of the person, Jessie Robinson.”

On appeal, appellant argues specifically that the instruction failed to require the jury to find the element of “intent to permanently deprive.” We have repeatedly pointed out that objections to instructions in the trial court must be specific so the trial judge has the opportunity to rule on the particular grounds relied on. This rule applies to objections to instructions in both civil and criminal trials. Maness v. Ill. Cent. R.R. Co., 271 So.2d 418 (Miss.1973); Entrican v. State, 309 So.2d 851 (Miss.1975). Mississippi Supreme Court Rule 42 expressly provides that “. . . attorneys are required to dictate their specific objections to an instruction offered, thus giving the trial judge an opportunity to pass upon the objections before the case is argued before the jury.”

At trial, the objection was that the instruction did not “contain the factual element of the crime.” Whereas, on appeal, it is now contended the instruction did not require the jury to find “intent to permanently deprive.” We hold that the objection at trial was a general objection and Rule 42 precludes review by this Court of that assignment of error. We note, however, that careful review of the evidence shows such action will not result in a miscarriage of justice.

For the above stated reasons, the conviction and sentence are affirmed.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.

SMITH, P. J., took no part.