author: PER CURIAM.

text:
    Jacob A. LeCOMPTE, Plaintiff-Appellant, v. The BOARD OF SUPERVISORS OF ELECTIONS OF the PARISH OF TERREBONNE, Defendant-Appellee.
    No. 10872.
    Court of Appeal of Louisiana, First Circuit.
    April 14, 1976.
    Michael J. Samanie and Charles G. Blaize, Houma, for plaintiff-appellant.
    Kenneth Watkins, Robert J. Prejeant, and Norval J. Rhodes, Dist. Atty., Houma, for defendant-appellee.
    Before LANDRY, SARTAIN, BLANCHE, EDWARDS and PONDER, JJ.
   PER CURIAM.

The general election for the office of Police Juror for District IV, Seat “A”, of the Parish of Terrebonne was held on December 13, 1975. Following the election and on December 16, 1975, the Board of Supervisors of Elections of the parish certified Royal J. Pellegrin as the winner over Jacob A. LeCompte by a margin of four votes.

LeCompte filed the instant action on January 30, 1976 against the Board alleging that Pellegrin was improperly certified as the winner because of certain irregularities which took place in four particular precincts with regard to absentee ballots. Pellegrin was not named as a party defendant in the petition.

The Board filed an exception of prescription which places at issue the date on which the election was promulgated as the time limit for contesting the election commences to run from the date said election is “promulgated.”

Exceptions of no right of action, no cause of action, and non-joinder of an indispensable party were also filed by the Board. We pretermit any resolution of these issues as unnecessary because we find that the exception of prescription is valid and plaintiff’s suit should have been dismissed.

R.S. 18:1251, in pertinent part provides:

“A candidate for any parish, district, or municipal office who claims to have been elected to office and who intends to contest the election shall within thirty days after the official promulgation of the result of the election file in the district court for the parish or the district in which the election was held a petition setting forth the facts on which he intends to contest the election.” * * * (Emphasis ours)

Plaintiff contends that official promulgation occurs when the Secretary of State publishes the results and proclaims the winner of each election in the official journal of the state as required by R.S. 18:860. The appropriate portion of this statute reads:

“The secretary of state, or in his default the commissioner of elections, not less than ten nor more than twenty days after the day of holding an election, shall compile the returns transmitted by the board of supervisors of elections of each parish and shall publish in the official journal the names of all candidates voted for and the number of votes cast for each, as shown by the returns. He shall declare the person receiving the greatest number of votes cast for the office for which such persons were candidates to have been duly elected.”

Defendant argues that the thirty day prescriptive period provided in Section 1251 above commences to run from the date the Board performs the functions required of it by R.S. 18:859, to wit:

“H. The board of supervisors of elections of each parish shall, within three days after the closing of the polls, convene at the courthouse of the parish and there, in the presence of at least three voters and as many others as desire to be present, make a true compiled statement as shown by the face of the sworn returns of the commissioners, in triplicate, of the result of the election and shall make public proclamation of the result. The compiled statement shall be sworn to before some other officer competent to administer an oath.”

In the recent case of Etheridge v. Doughty, La.App., 323 So.2d 160 (Nov., 1975), we held that “certification of the result of the election by the Board is tantamount to promulgation thereof.”

In Cooper v. Broussard, La.App., 266 So. 2d 549 (writs denied on other grounds, 263 La. 1, 266 So.2d 710), we held that promulgation occurred when the district political party committee met, tablulated the votes and announced the result of a party primary contest.

In Smith v. Fitch, La.App., 194 So. 435 (1940), involving a contest over an election for a police jury seat and the issue of proclamation, this court stated:

“In order to determine the beginning of the period of delay allowed for bringing a contest for nomination to an office other than that for State and District Offices, it is necessary to refer to other parts of Section 27 of the Act, the pertinent part of which reads as follows: ‘That in all elections * * * where returns are provided by this act to be made to the respective Committees ordering said primary election, it shall be the duty of the said chairman [of the committee], immediately upon receiving the said returns to at once open the same and cause same to he tabulated and compiled, and at twelve o’clock noon on the fourth day after the primary, the said committee ordering same shall reconvene at the same place and the chairman thereof shall submit to it the tabulated statement showing the result of the said primary election, together with the original returns received by him. That after the Committee has met and proclaimed the results as herein provided, * * *.’
(Italicizing ours.)
“From the above provision of the section it would appear that the promulgation of the results of the election referred to in other parts of the section from which the period of delay for filing a contest is to be determined, is similar in effect to the result as proclaimed by a local committee and has the same force and effect as to finality as the official promulgation of the Secretary of State has with reference to nominations for State and District Offices.”

In Brown v. Democratic Parish Committee, 183 La. 967, 165 So. 167 (1935), the Supreme Court of this state held that delays for seeking judicial review of a political party committee’s tabulation of returns commenced to run from the time the committee publicly and officially announced the result of the election. The court stated:

“The word ‘promulgate’ is defined in Funk & Wagnalls Standard Dictionary as follows:
‘“To make known or announce officially and formally to the public.’ (Italics ours.)
“See, also, Webster’s New International Dictionary, Second Edition.
“50 Corpus Juris, p. 720: ‘Promulgate —To publish; to announce officially; to make public as important or obligatory.’ (Italics ours.)”

Section 1251, above, while prescribing that an election contest must be filed within thirty days of the “official promulgation” does not designate or otherwise define what constitutes “official promulgation.” The source of this section consists primarily of Revised Statutes of 1870, Act 24 of 1877 and Act 24 of 1894. As per the Reporters Notes, there was no intention of making any change in the existing law when the Louisiana Revised Statutes were adopted by the Legislature in 1950.

We do not find that Section 1251 has been modified or repealed by the Acts of 1975. Accordingly, “official promulgation”, if possible, must be determined in accordance with other statutes relating to elections, including Sections 859(H) and 860, so as to give to each the effect intended by the Legislature.

R.S. 18:1192 states:

“The official promulgation of the results of all elections wherein voting machines are used or employed shall be in the same manner and form as provided by law in elections where no voting machines are used.”

Under cross reference in West’s Louisiana Statutes Annotated we find reference to Sections 567(C) (pertaining to general elections) and Section 360 (dealing with primary elections). Under Section 567(C) the Board of Supervisors is required to “make public proclamation of the result.” Section 360 provides that the result be “declared and promulgated” in the same manner as must be done in a first primary, which is as provided for in Section 355.

Admittedly, Section 355, while distinguishing between statewide or multidis-trict or multiparish elections on the one hand and local, parochial or single district on the other, does not specifically require the local committee to announce the results of the election after tabulation. It is evident that the Legislature intended such to he done. Otherwise, there would he no public pronouncement of an election result at the local level on purely local offices. Further, our statutes and jurisprudence clearly reflect that there be a distinction between statewide or multiparish or district races and those which are purely local in nature. In the former situations it is the Secretary of State who tabulates the results. In the latter case the local committee compiles and tabulates the result.

Historically, Louisiana’s political wars have been waged in a single party primary and it is, in all probability, for this reason that our research has failed to produce a case (and none has been cited by counsel) where the issue of time of promulgation has presented itself in a general election contest.

Further, our jurisprudence has been consistent in upholding the prescriptive delays in election contests. Brown v. Democratic Parish Committee, above. Reality dictates that all election matters be decided with dispatch. In the primary, ballots must be prepared in time for the general election, hence, the two day requirement (R. S. 18:420), which has actually been construed to mean forty-eight hours, Cooper v. Brown, above. The time sequences for judicial review, including the initial hearing, appeal and rendition of judgment, have been drastically reduced to insure that the election process be permitted to proceed as rapidly as humanly possible.

It is equally imperative that once the election contest has produced an apparent winner in the general election that a candidate’s right to that office be assured. Such is essential to the orderly transition of government.

Now, returning to Sections 860 and 859 (H), above, relied upon by the plaintiff and defendants, respectively, we note that both sections are part of Act 1 of 1975. This act created in Louisiana its first “open election system”, which in essence permits balloting on candidates irrespective of party affiliation. In addition, it eliminated the political party primaries, preparatory to the general election. This act makes no mention of Section 1251 (the thirty days relied upon by the plaintiff). Significantly, we note that Sections 380 through 423 of the Act deal with the “primary election”. Section 420(H) of Act 1 relating to primary elections specifically provides that an election contest must be instituted within two days after the “official promulgation”. With respect to local elections there is no “official promulgation” unless the same is made by the local board of supervisors of elections. Surely, the Legislature did not intend such an absurd result. It is obvious that this requirement for public proclamation was overlooked in the drafting of Section 420 as it relates to primary elections at the local level.

Again, Section 416 of Act 1 (now R.S. 18:416) distinguishes between a statewide election on the one hand (Section 416(A) and a local, parish or district election on the other (Section 416(B).)

Accordingly, we hold that “official promulgation”, within the intent of R.S. 18:1251, occurs in all elections when an appropriate election committee or state officer, who is charged by law to do so, first tabulates and publicly announces the final result of a given election and that the delays for seeking judicial review commence to run from the time of such first public proclamation.

For the above reasons, the judgment of the district court overruling defendant’s plea of prescription is reversed and judgment is rendered herein sustaining the same, dismissing plaintiff’s suit at his costs.

SUIT DISMISSED.

      . Same provision is contained in Section 859 (H).


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    GULFCOAST NEWSPAPERS, INC., Plaintiff and Appellee, v. Robert L. CART et al., Defendants and Appellants.
    No. 5385.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 21, 1976.
    Writ Refused July 1, 1976.

      Petitjean & -Petitjean by Martin Petit-jean, II, Rayne, for defendants and appellants.
    Jumonville, Hartley, Plauche & Broad-hurst by Oscar E. Reed, Jr., Lafayette, for plaintiff and appellee.
    Before CULPEPPER, WATSON and CUTRER, JJ.
   CULPEPPER, Judge.

This is a suit on an open account for printing services furnished by plaintiff, Gulfcoast Newspapers, Inc. to defendants, Robert L. Cart and Lillian J. Cart, d/b/a The Rayne Independent, over the period, October 31, 1967 through February 28, 1974. Defendants filed an exception of prescription. The district judge overruled the exception and rendered judgment in favor of plaintiff in the amount of $8,603.-13. From this judgment, defendants appeal.

The issues are: (1) Was the exception of prescription properly overruled? (2) Did plaintiff prove the balance due on the open account ?

On October 26, 1967, defendants, together with Patrick Hoffpauir, established The Rayne Independent. Initial operating capital of $2,000 for this venture was advanced to them by plaintiff through R. H, Fackelman, principal stockholder of Gulf-coast Newspapers, Inc. and owner of the. Crowley Daily Signal. This $2,000 is the first debit entered on the account. Defendants and Fackelman orally agreed that the Crowley Daily Signal would furnish certain printing services to defendants at stipulated prices. The agreement was essentially that the Signal would print defendants’ weekly paper and bill the defendants monthly with the charges, subject to any credits which defendants were due under the agreement.

In February of 1974, the Crowley Daily Signal came under new ownership and all printing services for defendants were ceased. Plaintiff then informed defendants of the balance due on the open account. Defendants refused to pay, and this suit followed.

Defendants filed exceptions of one, two and three years prescription. Plaintiff contends prescription was interrupted by a $2,000 payment made on October 4, 1972 by a check on which it is expressly stated it was in payment of the $2,000 cash advance in 1967. Plaintiff also contends other payments during 1972 and 1973 interrupted prescription. Defendants contend the $2,000 check was in payment of a note issued in that amount at the time of the establishment of The Rayne Independent, and that therefore the payment was not on the open account. Additionally, they contend that a written contract was perfected with plaintiff on July 22, 1970, which provided that no payments after September 3 of 1970 were to be applied to the “old account”.

The prescription applicable to suits on open account is three years. LSA-C.C. Article 3538. This period accrues three years after the last purchase or payment on the open account. Ford Marketing Corporation, Ford Parts Division v. First Auto Parts, 308 So.2d 799 (La.App. 4th Cir. 1975); Freiberg v. Rembert, 213 So.2d 104 (La.App. 1st Cir. 1968). The burden to prove that prescription has been interrupted is on plaintiff. Gibson Greeting Cards, Inc. v. Cabibi, 237 So.2d 897 (La.App. 4th Cir. 1970).

We will first consider the validity of the written agreement of July 22, 1970 which provides that all payments after September 3, 1970 would be applied only to “new charges”. Plaintiff contends the contract is of no effect since it was signed for plaintiff by a Mr. Paul Morcom. Plaintiff urges Mr. Morcom had no authority to act on its behalf in this matter. We find this objection non-compelling. The document containing the agreement as signed by Mr. Morcom was accepted into evidence. It was typewritten on stationery bearing the letterhead of plaintiff corporation. It was signed by Paul Morcom under title of business manager, and additionally was signed by defendants’ agent, Mr. Cart. There was no attempt by plaintiff at the time of its introduction to prove that it was a forged document or that Mr. Mor-com had no authority to act. We find its authenticity simply has not been rebutted by plaintiff.

The applicable portion of the agreement provides as follows :

“3. No money, of the new printing charges aforementioned, will be applied against the old balance owed by The Rayne Independent to the Crowley Signal, to reduce the old balance after Sept. 3, 1970.” (emphasis supplied)

The agreement then provides only that no payments for the new printing charges would be applied to the old balance. It does not provide that other money could not be applied to reduce the “old balance”.

We agree with the trial judge that the payment of $2,000 on October 4, 1972 by a check containing an express notation that it was in payment of the $2,000 advanced in 1967 is sufficient to interrupt prescription on the entire account. This $2,000 was the first debit entered on the account in 1967. Its payment in 1972 clearly interrupted prescription.

Defendants contend this $2,000 payment was a repayment of a promissory note issued and signed by them upon establishment of The Rayne Independent. We find the evidence does not preponderate that this payment was made to retire a promissory note. At the hearing on the exception, defendants produced only a copy of the alleged note. Also, they elicited the testimony of Walter T. Cart and Lillian J. Cart to the effect that upon receipt of the initial operating capital from Mr. Fackelman, a promissory note for $2,-000 was signed. However, the alleged note was never introduced into evidence nor was Mr. Fackelman called to substantiate the allegation. We conclude the payment made on October 4, 1972 in the amount of $2,000 was a payment on the original open account. Because suit was filed within three years of this date, the action had not prescribed.

We next consider the merits. At the trial the only evidence as to the amount due on the open account introduced by plaintiff was a document identified as “P-2”. This document was a summary of the debts and credits for each transaction between the parties as contained in the individual ledgers and journals of the plaintiff. Though it was a summary of the various specific charges and credits, it was made over a long period of time in the course of business of plaintiff. The account shows an outstanding balance of $8,603.89.

The evidence indicates clearly that printing services were in fact rendered for defendants from November 2, 1967 through March of 1974. Mrs. Lillian J. Cart, editor and publisher of The Rayne Independent, testified that during this period the services were rendered to defendants each and every week. Corroborative of -this evidence is the testimony of Mr. Eddie J. Hebert and Mr. Ernest Fristoe, who were linotype operators and later press men for plaintiff. They agreed that pages were printed for defendants during the period in question. Mr. Charles M. Pridgeon, Sr., business manager and bookkeeper for plaintiff from October, 1967 through October of 1970, testified that the newspaper was printed for defendants on a weekly basis during his employment. Mr. Prid-geon also testified that during his period of employment, all entries in P-2 were made either by him or under his direct supervision. He also identified the handwriting of Mrs. Katherine Tiller, who made most of the entries on the accounts from September 30, 1967 through August 31, 1971.

Both Mr. Pridgeon and Mrs. Eloise Ki-bodeaux, who was the bookkeeper for plaintiff from September 30, 1971 through March 1, 1974, testified that the monthly invoices prepared by plaintiff coincided with the amounts shown on the debits column on the open account ledger. Mrs. Kibodeaux and Mr. Milo A. Nichel, executive vice president of Gulfcoast Newspapers, and custodian of the accounts, testified that the balance shown on the accounts is $8,603.89.

Although the testimony is confusing and even conflicting in certain minor particulars, the evidence as a whole is clearly sufficient to establish a reasonable basis for the factual finding of the trial judge that the account was proved. Canter v. Koeh-ring, 283 So.2d 716 (La.S.Ct.1973).

For the reasons assigned, the judgment of the district court is affirmed. All costs of this appeal are to be paid by defendants-appellants.

Affirmed.

      . Though the account showed the balance due as $8,603.89, in his original petition plaintiff prayed for only $8,603.13. The trial judge therefore rendered judgment in the latter amount only.


author: SARTAIN, Judge.

text:
    Ford MARIONNEAUX, Plaintiff-Appellant, v. Henry KING et al., Defendants-Appellees.
    No. 10698.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      Jack T. Marionneaux, Plaquemine, for plaintiff-appellant.
    Byron Magbee and Arthur Cobb, Baton Rouge, for defendants-appellees.
    Before SARTAIN, EDWARDS and PONDER, JJ.
   SARTAIN, Judge.

This suit by plaintiff, Ford Marion-neaux, was brought seeking damages for libel and slander allegedly resulting from statements contained in documents filed in separate legal proceedings, wherein he is a defendant, in connection with a motion for summary judgment. The numerous defendants herein are all plaintiffs in those separate proceedings wherein said documents were filed in their behalf. The remaining defendant herein is the attorney for plaintiffs in the separate action. The trial judge in the instant case maintained defendants’ exception of no cause of action dismissing plaintiff’s suit, from which judgment plaintiff has appealed. We affirm.

The single issue presented here is whether one can maintain a cause of action for libel and slander arising out of allegations or statements made in judicial proceedings when those proceedings have not reached a final disposition. This, in our opinion, requires a negative answer.

The exception of no cause of action provided for in La.C.C.P. Art. 927(4) puts at issue whether any remedy is afforded by law to the plaintiff under the allegations contained in the petition. Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App., 3rd Cir., 1967). Our jurisprudence has consistently recognized, with the exception of one case decided at the intermediate appellate level, that a cause of action based on libel and slander for statements made in legal proceedings not yet final, will not be máintained whether it be asserted by re-conventional demand, W. B. Thompson & Co. v. Grosserand, 128 La. 1029, 55 So. 663 (1911) ; Howard v. Coyle, 163 La. 257, 111 So. 697 (1927); Robinson Mercantile Co. v. Freeman, 172 So. 797 (La.App. 1st Cir., 1937); Wilson Sporting Goods Co. v. Alwes, 21 So.2d 102 (La.App., 1st Cir., 1945), writs refused; Loew’s, Incorporated v. Don George, Inc., 237 La. 132, 110 So.2d 553 (1959); Thomas v. Mobley, 118 So.2d 476 (La.App., 1st Cir., 1960); Udell, Inc. v. Ascof Oils, Inc., 177 So.2d 178 (La.App., 2nd Cir., 1965); or by a separate action, Wolf v. Royal Ins. Co., 130 La. 679, 58 So. 507 (1912); Manuel v. Deshotels, 160 La. 652, 107 So. 478 (1926); Calvert v. Simon, 311 So.2d 13 (La.App., 2nd Cir., 1975). Our research has revealed only one case which has reached a contrary result, that case being Viera v. Kwik Home Services, Inc., 266 So.2d 732 (La.App., 4th Cir., 1972), writ refused, 263 La. 368, 268 So.2d 258, in which three justices dissented from the refusal and which refusal was prompted by the majority because the judgment was not final, thus causing them to “defer our ruling as to the correctness thereof.”

We will not attempt to distinguish this case from Viera, supra, and state simply that we cannot subscribe to the reasoning therein. Rather, we agree with the dissenting judge in Viera and the remainder of Louisiana jurisprudence which requires the termination of legal proceedings wherein the defamatory statements were allegedly made before plaintiff’s cause of action is perfected. We find particularly appropriate to the case at hand the following language enunciated by our brothers on the Second Circuit in Calvert v. Simon, 311 So.2d 13 (La.App., 2nd Cir. 1975) at page 17, and adopt .it as part of our reasoning herein:

“Louisiana law permits recovery by a party damaged by libelous statements made without probable cause and with malice by another party in a judicial proceeding, but consistent with orderly procedure and the concept of unhampered expression in the course of litigation, requires the party claiming such damage to await the determination of the original proceeding. Although the outcome of the original proceeding may not necessarily determine the issue of whether a party thereto can subsequently recover for libelous statements made therein, in most cases the outcome of the original suit will have a strong bearing on determination of that issue.
Because the rule is so firmly embedded in this state’s jurisprudence and because our reappraisal of the rule convinces us of its wisdom, we adhere to it in this case. The suit in which the alleged libelous and slanderous allegations were made and evidence given is still pending and is not finally adjudicated. Plaintiff’s cause of action has not yet come into existence and her suit is premature. The judgment sustaining defendants’ exception of no cause of action and dismissing plaintiff’s suit without prejudice is correct.”

For the above reasons, the decision of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: PONDER, Judge.

text:
    Douglas MILLER v. EAST ASCENSION TELEPHONE COMPANY, INC., and South Central Bell Telephone Company.
    No. 10688.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      V. James Stewart, Baton Rouge, for appellant.
    Allen M. Edwards, Plaquemine, for ap-pellees.
    Before SARTAIN, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is an appeal from a judgment sustaining certain peremptory exceptions asserted by South Central Bell Telephone Company, hereinafter referred to as Bell, in defense of a third party demand made upon it by East Ascension Telephone company, hereinafter referred to as EATEL.

On May 12, 1971, Miller, plaintiff in the principal demand, filed suit against Bell and EATEL alleging that their negligence and breach of contractual duties resulted in his failure to complete a business telephone call from Jennings, Louisiana to Gonzales, Louisiana. He alleged damages in excess of one million dollars.

Bell moved for summary judgment against Miller on May 27, 1971. The motion was heard and granted on June 25, 1971. Miller appealed and this court affirmed. Miller v. East Ascension Telephone Company, Inc., 263 So.2d 360 (La.App. 1st Cir. 1972), writ refused, 262 La. 1121, 266 So.2d 430.

On March 24, 1975, EATEL filed a third party demand against Bell asserting that Bell was liable to EATEL for any judgment which may be rendered against it in favor of Miller. This is based on an alleged contract between Bell and EATEL requiring the former to perform certain services on behalf of EATEL. It is alleged that the damage to Miller, if any, resulted from Bell’s failure to perform properly the services required by the contract.

Bell responded by filing exceptions of judicial estoppel, laches, law of the case (no right or cause of action), res judicata, and prescription. The trial court sustained all of the exceptions and EATEL has appealed.

The exceptions of res judicata and prescription have apparently been abandoned. In any event, they are without merit. Res judicata requires identity of the thing demanded, the cause of action and parties in the same capacity. All these elements are missing. The plea of prescription of one year is not applicable to this cause of action based upon contract.

The exception of judicial estoppel is predicated upon the premise that the judgment rendered in favor of Bell and against Miller precludes assertion of EATEL’s third party claim against Bell.

The most recent construction of the principle of judicial estoppel by the Supreme Court is found in Sliman v. McBee, 311 So.2d 248 (La.1975), where it is said:

“The rule is said to bar reconsideration of matters previously determined by a court of competent jurisdiction and raised again by the same parties or their privies. Although the application of this common law doctrine in the civil law system of Louisiana is not free from doubt, this is of no moment here. Even under the doctrine of judicial estoppel, the matter of Mrs. Sliman’s right of dissolution for nonpayment of the promissory notes that became due subsequent to the compromise settlement was never adjudicated by a court, in either the first or second suit. Accordingly, Mrs. Sli-man is not foreclosed by judicial estoppel from asserting her right of dissolution and is entitled to rescind the sale by reason of the failure of the buyers, the McBees, to pay the full purchase price.”

Assuming arguendo the requirement of identity of parties is satisfied, nevertheless, the principle of judicial estoppel is not properly applicable to the circumstances before us. The judgment rendered in favor of Bell adjudicated only the issues of Bell’s tortious conduct toward Miller and breach of contractual obligations owed by Bell to Miller. The issue upon which the third party demand is founded is a contractual obligation between Bell and EATEL and the breach thereof. This matter was not before the court and was not adjudicated in the summary judgment proceeding.

Sliman, supra, clearly requires adjudication of an issue as a prerequisite to the application of the principle of judicial estoppel. The issue upon which the third party demand is founded has not been previously adjudicated; thus judicial estoppel will not serve to defeat EATEL’s claim.

Petition of Sewerage and Water Board of New Orleans, 278 So.2d 81 (La.1973), sets forth the scope of the principle of the law of the case, stating:

“The law of the case principle relates to (a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both sides, of affording a single opportunity for the argument and decision of the matter at issue.”

The principle is applicable to and determines the effect given prior rulings disposing of identical issues earlier in the same proceedings involving the same parties. Keller v. Thompson, 134 So.2d 395 (La.App. 3rd Cir. 1961). As we stated above the issues posed by the third party demand are entirely distinct from those disposed of by the judgment granted to Bell. Therefore, the principle of the law of the case is inapplicable to this proceeding.

If the exceptions of no cause of action and no right of action be based on any ground other than the law of the case principle, they are equally without merit. The third party plaintiff has certainly pled a cause of action based on contract. Nor can it be validly asserted that EATEL is without legal interest in the subject matter of the suit.

The plea of laches is predicated on a contention that the lapse of time between the filing of the original demand and the third party demand, approximately three years and ten months, coupled with certain other circumstances have prejudiced Bell’s ability to defend this matter to such a degree that assertion of the third party demand should be precluded.

In Barnett v. Develle, 289 So.2d 129 (La.1974), laches is defined as:

“The doctrine of laches is predicated on equity. It addresses itself to the eviden-tiary effect of delay. It is based on the injustice that might result from the enforcement of long neglected rights, the difficulty, if not the impossibility, of ascertaining the truth of a matter in controversy, and doing justice between parties and on the public policy of discouraging stale and intiquated claims in the interest of the peace and repose of society. Labarre v. Rateau, 210 La. 34, 26 So.2d 279.”

The mere lapse of time is not sufficient to invoke the doctrine of laches. Munson v. Martin, 249 La. 925, 192 So.2d 126 (1966); Labarre v. Rateau, 210 La. 34, 26 So.2d 279 (1946). A doctrine, such as laches, which would preclude the adjudication of a claim is not favored and will be subjected to close scrutiny before it will be applied. Cf. Barnett v. Develle, supra; American Bank and Trust Co. v. Trinity American Insurance Company, 194 So.2d 164 (La.App. 1st Cir. 1966).

Bell first contends that the progress of the lawsuit during its absence creates substantial prejudice to its ability to defend. We are unimpressed with this contention. Little progress has been made. All the pertinent activity we are able to discern is some discovery and a pre-trial conference. Information developed thereby is available to Bell and no appreciable prejudice occurred as a result of Bell’s not being able to participate.

Second, Bell contends the dimming of the memory of witnesses and loss thereof through employee turnover has substantially prejudiced it. With regard to the dimming of memory we are not convinced that this lawsuit would have progressed any more quickly had Bell been a party the entire time.

With regard to turnover the record fails to disclose one instance of a witness deemed necessary who was either alleged or shown to be unavailable. This contention is without merit.

Finally, Bell, claims certain records pertinent to its relationship with EATEL have been destroyed rendering it unable to defend the third party demand. The record disclosed that the records in question were destroyed by Bell. The records were said to be kept for “not more than a year at the most.” There is no evidence that the records in question were still in existence at the time the principal demand was filed. We fail to see how Bell was prejudiced by the lapse of additional three years and ten months.

For the reasons assigned the judgment of the trial court is reversed at appellee’s cost and this case is remanded to the court below for further proceedings.

REVERSED AND REMANDED.


author: CULPEPPER, Judge. DOMENGEAUX, Judge

text:
    Virginia FIELDING, Plaintiff and Appellee, v. CASUALTY RECIPROCAL EXCHANGE, Defendant and Appellant.
    No. 5362.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 19, 1976.
    Writ Refused July 1, 1976.

      Gold, Hall, Hammill & Little by Eugene J. Sues, Alexandria, for defendant and appellant.
    Gahagan & Gahagan by Russell E. Ga-hagen, Natchitoches, for plaintiff and ap-pellee.
    Before CULPEPPER, DOMEN-GEAUX, WATSON, GUIDRY and PAVY, JJ.
   CULPEPPER, Judge.

This is a suit for damages arising out of an automobile accident. The plaintiff, Virginia Fielding, was injured while a passenger in her own automobile, which was being driven by Clyde Allen. He was using plaintiff’s automobile while his pickup truck was in a shop for repairs. The defendant, Casualty Reciprocal Exchange, is the insurer of Allen’s truck. Plaintiff contends that under the “temporary substitute automobile” provisions of Allen’s policy, he was covered while driving plaintiff’s vehicle. The trial judge found coverage and rendered judgment for the plaintiff in the sum of $6,885.23. Defendant appealed.

The sole issue for our determination is whether the plaintiff was a “resident of the same household” as Allen, in which event there would be no coverage of Allen while driving plaintiff’s automobile.

The accident occurred on January 31, 1975. Allen attempted a left turn from the. highway and entered the path of an oncoming vehicle, thus negligently causing the accident.

The automobile being driven by Allen was a 1964 Ford stationwagon, which had been purchased by him the week before and given to plaintiff. She was listed on the title as the registered owner.

At the time of the accident, Clyde Allen was the owner of a 1968 Chevrolet pickup truck, which was insured under a liability policy issued by defendant, Casualty Reciprocal Exchange. This policy provides liability coverage to Allen while driving “an owned automobile or a temporary substitute automobile.” The policy defines “owned automobile” as one owned by the same insured (Allen) and described in the policy. A “temporary substitute automobile” is defined in the policy as follows:

" 'temporary substitute automobile’ means an automobile not owned by the named insured or any resident of the same household, while temporarily used with the permission of the owner as a substitute for an owned automobile when withdrawn from normal use for servicing or repair or because of its breakdown, loss, or destruction.”

Plaintiff contends that since Allen’s truck had been withdrawn from normal use for repairs, and the stationwagon was being used by him temporarily with the permission of the owner as a substitute for the “owned automobile”, that Allen was insured under defendant’s policy. Defendant contends plaintiff was a “resident of the same household” as Clyde Allen, the named insured, and that therefore the “temporary substitute automobile” provision of the policy is inapplicable to this case.

In a suit on an insurance contract the burden is on the plaintiff to prove every fact essential to show that his claim is within the coverage provided by the policy. Talazac v. Phoenix of Hartford Insurance Company, 259 So.2d 636 (4th Cir., La.App., 1972). Thus, in this case plaintiff must prove (1) that the automobile involved in the accident was not owned by the named insured (Clyde W. Allen), (2) that it was temporarily used with the permission of the owner, (3) that it was a substitute for an owned automobile withdrawn because of repair or loss and (4) that the automobile was not owned by a resident of the same household as the named insured. The evidence clearly proves the first three of these requirements. The only issue is as to the fourth.

It should first be noted that the term “residence” is not synonymous with “domicile”, though the two terms are closely related. A person may have only one legal domicile at the same time, but he may have more than one residence. LSA-C.C. Article 38; Manuel v. American Employment Insurance Company, 228 So.2d 321 (3rd Cir., La.App., 1969); LaFluer v. Seaboard Fire & Marine Insurance Company, 296 So.2d 860 (3rd Cir., La.App., 1974), writ refused 300 So.2d 185 (La.1974).

“Resident” is defined in Webster’s Third New International Dictionary, 1966 as “one who dwells in a place for a period of some duration.” However, “[w]hether a person is or is not a resident of a particular place is a question of law as well as fact, and is to be determined from all of the facts of each particular case . . .” Ladner v. Andrews, 216 So.2d 365 (3rd Cir., La.App., 1968); Taylor v. State Farm Mutual Automobile Insurance Company, 248 La. 246, 178 So.2d 238 (1965).

“The question is one largely of intention, and the intention of a person, in that respect, is determined by his expressions thereof at times not suspicious, and his testimony, when called on, considered in connection with his conduct and the circumstances of his life.” Stavis v. Engler, 202 So.2d 672 (4th Cir., La.App., 1967).

While these jurisprudential guides may-aid us in a final determination of the instant litigation, we must not lose sight of the fact that we are dealing with a term in a contract. Thus, the interpretation and meaning of the term “resident” in this case should be construed in accordance with those provisions of our law particularly applicable to construction of contracts. LSA-C.C. Article 1945 provides in part as to interpretation of agreements “ * * * that the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences * * Article 1946 provides: “The words of a contract are to be understood like those of a law, in the common and usual signification, without attending so much to grammatical rules as to general and popular use.” Taylor v. State Farm Mutual Automobile Insurance Company, supra.

The testimony of plaintiff and her wit-' nesses is vague and contradictory as to her residence. She had been married three or four times and had lived with several other men. She had lived in Pueblo, Colorado, in Baltimore, Maryland, and in Jonesboro, Winnfield, Shreveport, Robeline and Natchitoches, Louisiana more recently. When asked at the trial for her address, she stated she did not have one.

In a pretrial deposition she stated that though she sometimes went by “Virginia Allen”, she got that name from living with a “Willie Allen” in Winnfield. She stated she spent some nights with Clyde Allen and kept a change of clothes there but did not live with him. She said that at the time of the accident she was living with her cousin, Shirley. Later in the deposition, however, she stated that at the time of the accident she was living at her brother’s girlfriend’s house in Robeline.

At the trial she reiterated most of this testimony but admitted that sometimes she would live a week or two with Clyde. She stated her clothes were in Natchitoch-es at her brother’s house at 8331/2 Third Street, but that some were also scattered in “Jonesboro, Winnfield and everywhere else.”

Clyde Allen testified at the trial that plaintiff lived with her brother at the time of the accident. Plaintiff said she kept some clothes at her brother’s home on Third Street in Natchitoches, but that she also kept some clothes at other places. She said that she and Clyde Allen never held themselves out as husband and wife, and that she was not a resident of his household. However, both she and Allen admitted she went by the name of “Allen.”

Dr. Archie Breazeale, Jr., plaintiff’s personal physician, testified that his office records indicate that plaintiff was married and that she and Clyde Allen had a joint account with him. In the medical history he elicited from plaintiff following the accident is contained the statement that plaintiff was injured in an accident while riding in an automobile driven by her husband. That history also contains the entry that Clyde Allen was plaintiff’s husband. Additionally, Dr. Breazeale testified that the admission records of the hospital indicated that plaintiff had named Clyde Allen as her husband. The record contains a stipulation as to this point and additionally plaintiff testified that she “possibly” said at the hospital she was married to Clyde, but that the purpose of that was to take advantage of the “spouse provisions” of Clyde Allen’s health and accident insurance.

Plaintiff also gave Dr. Dean, the Shreveport doctor to whom she was referred after the accident, her address as being the same as that of Clyde Allen.

Trooper Ira T. Chambers, who investigated the accident, testified that Clyde told him that his “wife” was riding with him. He said that Clyde later confided to him that the two were living together. Also, his accident report contains the same address for both Clyde Allen and plaintiff.

The manager of the Natchitoches A&P Store, where plaintiff had worked, testified that his company’s “personnel card” gave plaintiff’s address as 327 Buard in Natchi-toches (Clyde’s address). That card also contained her phone number as that of Clyde. An A&P “separation notice” was produced upon which was noted that plaintiff was married and lived at 327 Buard Street. Additionally, the manager of the store’s meat market in which department plaintiff had worked stated that whenever he needed to get in touch with the plaintiff he would call Clyde Allen’s number.

It was also stipulated at trial that if called to testify, Ryan Horton, Clyde Allen’s landlord would testify that when he arrived to collect the rent on a “couple of occasions”, plaintiff was present at Clyde’s house.

Finally, plaintiff’s driver’s license shows her name as “Allen”, and her address the same as that of Clyde. Additionally, the title to her car, which was involved in the accident, shows her address as 327 Buard Street in Natchitoches, i.e., Clyde Allen’s address.

As circumstantial evidence of plaintiff’s residence, we also note that on December 22, 1974 and on January 30, 1975, plaintiff placed two calls to her son in Colorado from Clyde Allen’s phone. Plaintiff also admitted that she received mail at Clyde’s business address, 520 Amulet Street in Natchitoches, and that in fact that was the only place where she did receive mail.

We note that while plaintiff contends she in fact lived with her brother at the time of the accident, she did not call her brother as a witness. Also, she contends the reason for her last name being “Allen” is that she had once lived with a “Willie Allen”, but he was not called by her to testify at the trial. Where the testimony of a person seeking to establish a claim has been put in doubt but it is susceptible of corroboration, the failure to call available witnesses who allegedly possess knowledge of the disputed relevant facts, may be considered in evaluating that person’s credibility. Messex v. Georgia-Pacific Corporation, 293 So.2d 615 (3rd Cir., La.App., 1974).

In summary, the evidence indicates that plaintiff had several places at which to stay. She could choose any one of them at any time and she apparently had clothes at all places so that any of them would be “home” to her. It is clear that she was welcome at Clyde’s at any time and for any period and that, in fact, she spent the majority of her time at the home of Clyde. If she had any semblance of a permanent home, Clyde’s residence was it.

To be considered a resident of a particular place, it is only necessary that a person “maintain such a relation with the place or premises so selected as will entitle him at his will and without making new arrangements therefor upon each return, to occupy such place whenever his necessities or pleasure require, this without having to ask permission of some one else.” Hall v. Godchaux, 149 La. 733, 90 So. 145 (1921).

We therefore find plaintiff to have been a resident of the household of the named insured, Clyde Allen, and thus find the policy of insurance issued by defendant does not provide coverage for the accident herein sued upon. Thus, we find it unnecessary to reach the question posed by appellant of whether the automobile was in the care, custody and control of the insured under the exclusion provided in defendant’s policy.

For the reasons assigned, the decision of the district court is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of defendant, Casualty Reciprocal Exchange, and against the plaintiff dismissing this suit at her cost. All costs of this appeal are to be paid by plaintiff-appellee.

REVERSED AND RENDERED.

DOMENGEAUX, J., dissents and assigns written reasons.

WATSON, J., dissents for the reasons assigned by DOMENGEAUX, J.

DOMENGEAUX, Judge

(dissenting).

I suggest that the judgment of the trial court should be affirmed for either or both of the following reasons:

1. Ambiguity of the word “resident” as elucidated upon in the case of Vinet v. Hano, 281 So.2d 183 (La.App., 4th Cir., 1973).

In the event no ambiguity exists, thus eliminating the requirement of an interpretation of the policy provisions adverse to the defendant-insurer, the determination should be based upon:

2. Affirmation of a fact and credibility finding. I submit respectfully that this fact and credibility reversal violates the well known and jurisprudentially entrenched rules of appellate review on the subject so clearly set out and mandated in Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Admittedly there are circumstances which suggest that the plaintiff resided at Clyde Allen’s residence, but it is evident that the trial judge didn’t think so. He said:

“To say the least, the plaintiff’s conduct and her personal affairs would not. be the model of decorum, but this Court is not called upon to judge her morals but to determine whether or not she is a resident of Clyde W. Allen’s household as of January 31, 1975.
The Court finds that Mrs. Fielding’s domicile or household was 833j/j Third Street on January 31, 1975.” (That address is the apartment of plaintiff’s brother.)

There is no question that plaintiff participated in trysts with Clyde Allen at his residence at 327 Buard Street. This does not establish residence. Plaintiff was going out with three or four and possibly five other men during the time that she was supposed to be living with Clyde Allen. Mr. Allen knew this. The trial judge obviously considered this in concluding that plaintiff was not a resident of Clyde Allen’s household.

Plaintiff, Clyde Allen and Faye Mo van testified that plaintiff was residing in the apartment with her brother. No one testified otherwise except by innuendo.

Mr. Blake, husband of plaintiff’s sister, knew Clyde Allen for years; he visited his home during the Christmas Holidays; plaintiff was there, but Blake testified that there was no indication that she was living there. It was his information that plaintiff was residing at her brother’s apartment, as found by the trial judge.

There is evidence that plaintiff formerly lived with one “Willie” Allen and started using the last name “Allen”. This was long before her association with Clyde Allen. It is not unreasonable to conclude that Doctor Breazeale thought that she was Clyde’s wife, in that she called herself Virginia Allen.

The majority concludes that the testimony of plaintiff and Clyde Allen is unsatisfactory. The cold record may so indicate, —but the district judge felt otherwise. Can we say that they lied when the trial judge obviously didn’t think so?

The trial judge considered all of the circumstances and testimony and made a factual determination, a credibility holding. We shouldn’t reverse by second guessing him. There are too many variables in this case to reverse.

After reviewing the complete record and considering all of the evidence, I cannot say that the trial judge erred manifestly in finding that plaintiff was “not moved in” with Clyde Allen at the time of the accident.

I respectfully dissent.


author: HOOD, Judge.

text:
    Randle BUTLER, Individually and as Tutor of his minor daughter, Elizabeth, Plaintiff-Appellee, v. The LOUISIANA STATE BOARD OF EDUCATION, and University of Southwestern Louisiana, Defendants-Appellants.
    No. 5392.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 19, 1976.
    Writ Refused July 1, 1976.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, and Frank P. Trosclair, Jr., Opelou-sas, for defendants-appellants.
    John K. Hill, Jr., Mouton, Roy, Car-mouche & Hailey, Lafayette, Roberts & DeSonier, by John T. Keys, Jr., Metairie, for plaintiff-appellee.
    Before HOOD, GUIDRY and PETERS, JJ-
   HOOD, Judge.

Randle Butler instituted this suit individually and as tutor for his minor daughter, Elizabeth Butler, to recover damages for injuries sustained by his daughter when she fainted and fell after giving blood for a biology experiment. The defendants are the Louisiana State Board of Education and the University of Southwestern Louisiana. Miss Butler reached the age of majority after the suit was instituted, and thereafter the suit was continued with her and her father as plaintiffs. The trial court rendered judgment in favor of plaintiffs. Defendants appealed.

The principal issue presented is whether Df. W. D. Durio who was an assistant professor of biology at the above university when the accident occurred, was negligent in failing to provide proper facilities or supervision for the withdrawing of blood from Miss Butler, with the result that defendants are liable for the injuries sustained by plaintiffs.

In September, 1968, Miss Butler, who was then 18 years of age, enrolled as a freshman at the University of Southwestern Louisiana. Paul Villien, who was 20 years of age, enrolled as a senior in pre-medical studies at the same university at that time.

During the fall semester of 1968, the university offered for credit a course designated as “Biology 410,” which was an individual study course for advanced students. Each student who took that course was permitted to engage in a research project under the supervision of a member of the faculty in the Biology Department, and by doing so he could earn credits to apply toward obtaining his degree.

Villien enrolled in the “Biology 410” course that semester, and he desired to undertake a research project which involved comparing the Vitamin C content in the blood of smokers with the Vitamin C content in the blood of non-smokers. Since a project of that kind required faculty supervision, Villien approached Dr. Walter Du-rio, an Assistant Professor of Biology, and discussed the project with him. Dr. Durio agreed to permit Villien to undertake the research project under his supervision and direction.

The project required the extraction of blood from student volunteers, some of whom were to be smokers and some nonsmokers. The student volunteers would be required to give 5 cc’s of blood, amounting to approximately one tablespoon, on each of several occasions which were to be scheduled'by Villien. After drawing and analyzing the blood samples, Villien then planned to write a report based on a comparison of the non-smokers’ control group with the smokers’ control group.

The drawing of blood was to be performed by the student, Villien, who had acquired a working knowledge of blood extraction as the result of his part-time employment at Lafayette Charity Hospital. Prior to the accident, which occurred on October 17, 1968, Villien had been employed as a laboratory assistant in that hospital for about two years. He usually worked two or three nights per week and on weekends during the school year, and he worked full time during the summer vacation. He was given no specific clinical training in the drawing of blood during the above part-time employment, but he received on-the-job training under the direction of the medical technicians employed by the hospital. Villien was instructed in the various procedures of drawing blood, and in the procedures and practices of dealing with patients who became faint or weak subsequent to the extraction of blood. During the period of his employment prior to the accident, Villien dealt with approximately five persons who had become faint or syn-copic following the extraction of blood. All of those persons responded favorably to the first aid techniques he had been taught, however, and no accidents had occurred.

Dr. Durio permitted Villien to use his office, Room 200C of Billeaud Hall, for the purpose of extracting blood from the student volunteers. His office was a small room, being ten feet by twelve feet in size. In that office were an average size -desk, a bookcase, several chairs and a small end table. There was no wheelchair or roll-away bed in that office. There also was no cot or bed or long table suitable for a person to lie on in Dr. Durio’s office. There, however, was a long conference table suitable for that purpose in a conference room located adjacent to Dr. Durio’s office. Dr. Durio and his secretary apparently agree that the distance from the desk in Durio’s office to the above conference table, was about 16 paces.

To obtain volunteers for the above project, Villien asked his friends and other students to participate. Dr. Durio also endeavored to obtain student volunteers for the project by announcing to his classes, including the class in which Miss Butler was enrolled, the purpose of the project and then asking his students to participate in it. It was in response to one of Dr. Durio’s announcements that plaintiff, Elizabeth Butler, volunteered to give blood for Villien’s project.

On October 17, 1968, Miss Butler went to Dr. Durio’s office, accompanied by her dormitory suitemate, Linda Fowler. Upon her arrival at Room 200C of Billeaud Hall, she entered the secretarial outer office, staffed by Mrs. Pat Dakin, a secretary in the Biology Department. Mrs. Dakin greeted Miss Butler, determined the purpose of her visit and instructed her to have a seat in the outer office, since Villien at that time was extracting blood from another volunteer. Mrs. Dakin testified that Miss Butler appeared apprehensive and nervous, and that she overheard plaintiff say something which indicated that she thought the blood was to be extracted from her finger instead of from her arm.

Shortly thereafter, when Miss Butler entered Dr. Durio’s office, she was greeted by Villien, who informed her that the blood was to be extracted from her arm. He detected that she was uneasy, and he tried to reassure her by joking with her. Miss Butler was seated in a chair next to the desk in Dr. Durio’s office. Villien placed a tourniquet on her arm, sterilized the area in which the needle was to be inserted, and he then attempted to puncture the vein with a vacutainer, a tube with needle attached and containing a vacuum. After several unsuccessful attempts to find the vein, Villien finally succeeded in withdrawing the required S cc’s of blood from Miss Butler. After the extraction, Villien showed the tube of blood to Miss Butler, whereupon she expressed a feeling of being weak or faint. Villien immediately tried to reassure her, and while doing so he secured a coke from which Mrs. Butler took a couple of swallows. The testimony is conflicting as to whether Miss Butler at that time was administered some ammonia, and as to whether she was instructed to put her head in her lap or in a dependent position. It was evident, however, that regardless of what was done her condition did not improve.

Villien was aware of the fact that Miss Butler’s condition had not stabilized, and he decided that the correct procedure would be for her to lie down, that being the recognized treatment for syncopy or fainting. The only available place for Miss Butler to recline, other than on the floor, was on the above mentioned conference table which was located in the conference room adjacent to Dr.'Durio’s office.

Miss Butler, with Villien and Linda Fowler walking beside her, then proceeded to walk from Dr. Durios office toward the conference room in which the above table was located. The evidence shows that Vil-lien and Miss Fowler each had one hand on Miss Butler s back, but that they were not supporting her while she walked. When they reached a point near the door of the conference room, and within six feet of the conference table, Miss Butler suddenly fainted and fell forward to the floor. Her chin struck the floor, and as a result of that fall, six of her teeth were broken or badly damaged.

After Miss Butler fell, ammonia was administered to her. She was picked up by Villien and put on the conference table, and she was allowed to recline on that table until her syncopic episode had passed. She then was taken by Mrs. Pat Dakin to Lafayette General Hospital, accompanied by Linda Fowler, where she was treated and released. Upon leaving the hospital she was taken to a dentist for treatment.

This suit was filed on October 14, 1969, but was not tried until June 19, 1974, almost six years after the accident occurred. The trial court concluded that Dr. Durio was negligent in having allowed Villien to conduct the above experiment, involving the withdrawal of blood from students, “without properly supervising and preparing for just such an occurrence as did in fact happen here to Miss Butler.” He found that Dr. Durio also was negligent in having failed to instruct Villien to prepare for “a syncopic subject after extraction of blood.” Judgment was rendered by the trial court in favor of plaintiff and against defendants, in solido, awarding Miss Butler $8,772.00, and her father $886.00. Defendants have appealed. Plaintiffs have not appealed or answered defendants’ appeal.

We have concluded that there is no error in the judgment rendered by the trial court.

During the interval which elapsed between the date of the accident and the date of the trial, Paul Villien enrolled in and completed medical school. He was licensed to practice medicine at the time of the trial, and at the trial he was qualified to testify as an expert as to the standards which prevailed among medical experts in that community for withdrawing blood from patients. He stated that in his opinion the facilities which existed in Billeaud Hall where the blood was being extracted were adequate or standard for the medical profession in that community. He also testified, however, that in order to determine whether a person has recovered from a pre-syncopic episode sufficiently to enable him to walk, the monitoring of that person’s vital signs is required, such as heart beat, respiration and pulse, and that he did not know how to make that determination when the accident occurred in 1968. He stated that most of the patients he withdrew blood from while working at the Charity Hospital were in a reclining position when the withdrawal was made, and he dosen’t remember whether the five persons who experienced pre-syncopic symptoms while he was extracting blood were reclining. Nurses were on duty 24 hours a day there, however, and doctors were on call immediately. Dr. Villien also stated that when a patient becomes progressively syncopic he “is usually either carried or rolled in a wheelchair to an appropriate place,” or he should be “seated or put down on the floor.” When asked whether he feels that he followed accepted procedures in handling Miss Butler, he stated that he did, but he qualified that answer by stating that he followed accepted procedures “for a layman.”

Dr. Villien testified that Dr. Durio did not discuss with him or give him any instructions about monitoring vital signs of a pre-syncopic patient before permitting him to walk. He stated that he discussed generally with Dr. Durio the experience which Villien had had in extracting blood, but he said, “I don’t recall whether or not we discussed what to do with the syncopic patients.” He also testified, “It would have been better if we would have had a wheelchair ... it would have been a matter of transporting the patient to a bed or table.”

Dr. Durio held doctorates in Physiology and Biology. He was not a medical doctor, but he had received formal training in the withdrawal of blood from human beings, and he had actually withdrawn blood from 20 to 25 persons. None of those persons experienced pre-syncopic episodes, however, so Dr. Durio has had no first hand experience in treating patients under those conditions. Dr. Durio testified that before the accident occurred he did not inform Villien that a patient should lie down if he became faint. He explained that he did not anticipate that Villien would encounter a problem such as Miss Butler’s pre-syncopic episode, that it would have been "virtually impossible” for him to have a bed or table any closer to his office than was the conference table, and that he did not tell Villien that a pre-syncopic patient should not be allowed to walk, or that the patient should be supported in the event it became necessary for him to walk. Dr. Durio stated that in view of Villien’s experience at the Charity Hospital he pretty much relied on the latter’s judgment in handling patients who became faint after the extraction of blood. He did not discuss the use of smelling salts with Vil-lien, and there in fact were no smelling salts in Durio’s office.

Dr. J. Boring Montgomery, who is engaged in the general practice of medicine, testified that a cot or table need not necessarily be in the same room when the blood is extracted, but that most laboratories and most physician’s offices have such a facility very near or “readily available” for the patient. We understand his views to be that a distance of “three or four paces” would be close enough to meet the medical standards of that community, but that it would be “pushing your luck” to have the bed or table located as much as ten paces from the place where the blood is extracted. Dr. Durio and his secretary agree that the conference table was about 16 paces from the place where Miss Butler was seated when the blood was extracted.

An important legal question presented is whether Dr. Durio owed to the students who volunteered to give blood for this project, including Miss Butler, the same duty of care as would have been required of members of the medical profession in that community.

The law is settled that nurses and medical technicians who undertake to perform medical services are subject to the same rules relating to the duty of care and to liability as are physicians in the performance of professional services. Favalora v. Aetna Casualty & Surety Company, 144 So.2d 544 (La.App. 1 Cir. 1962); Norton v. Argonaut Insurance Co., 144 So.2d 249 (La.App. 1 Cir. 1962); Thompson v. plies to a professor of Biology in a univer-Brent, 245 So.2d 751 (La.App. 4 Cir. 1971). We believe that the same rule ap-sity, who approves and undertakes to supervise a project which includes the performance of a medical function, such as the withdrawal of blood from volunteer students. If he allows a student to perform that medical function, then we think he owes a duty to the volunteer patient or blood donor to see that the same precautions are taken for the safety and well being of that patient as would be taken by licensed medical doctors in that locality.

The applicable rule, as stated in Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953), is:

“A physician, surgeon or dentist, according to the jurisprudence of this court and of the Louisiana Courts of Appeal, is not required to exercise the highest degree of skill and care possible. As a general rule it is his duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment, in the application of his skill to the case.”

In the instant suit we agree with the trial judge that Dr. Durio was negligent in at least the following respects: (1) In allowing this experiment to be conducted without previously instructing or preparing Villien, the 20-year old student who was to extract blood from other students, so that he could properly care for patients who had pre-syncopic or syncopic episodes following the extraction of blood, and (2) in authorizing one of his students to extract blood from volunteers without providing a bed or table nearer the place where the blood was being extracted, or without arranging for a wheelchair or a rolling bed to be available immediately so that a pre-syncopic patient could be carried or transported safely to a place where he could recline.

We believe that the degree of care exercised by Dr. Durio fell short of that required of members of the medical profession, under similar circumstances, in that locality. If Durio had properly instructed Villien as to the procedures which should be followed when a patient develops pre-syncopic symptoms, and had he also provided ready access to a bed or table or a means of carrying the patient to such a facility, the accident probably would not have occurred. His negligence in failing to give the above instructions and in failing to provide the needed facilities was a proximate cause of the accident. Dr. Durio’s negligence must be attributed to the defendant university and to the State Board of Education.

Defendants contend, however, that plaintiffs are barred from recovering by contributory negligence on the part of Miss Butler. They argue that plaintiff insisted that she wanted to go back to her dormitory, and that she misled Villien by telling him that she was feeling fine after the blood was extracted, when she in fact was feeling faint.

Miss Butler and a classmate who was with her deny that plaintiff insisted upon returning to her dormitory or that she told Villien that she was feeling alright. On the contrary, they testified that from the time the blood was extracted until the accident occurred, Miss Butler insisted that she felt weak and faint and that she wanted to lie down. Villien acknowledges that he was not misled by anything Miss Butler may have said. He knew that she was having a severe pre-syncopic episode, that she could not have walked to her dormitory or even down the stairs of Billeaud Hall, and that it was necessary for her to lie down. He apparently did not know that it was dangerous to allow a person under those conditions to attempt to walk and particularly to attempt to do so without adequate support to prevent the patient from falling in the event he or she suddenly loses consciousness. He was walking with her to the conference table so that she could lie down when the accident occurred,, but he did not provide adequate support for her to prevent her from falling. We think his failure to' take that precaution was due to a lack of knowledge of the danger involved, the failure of his supervisor to adequately instruct him, and the lack of facilities which would have enabled him to move Miss Butler to the conference room without subjecting her to the danger of attempting to walk.

We agree with the trial court that defendants have failed to establish contributory negligence on the part of Miss Butler. We conclude that there is no error in the judgment appealed from.

For the reasons assigned, the judgment appealed from is affirmed. The defendants-appellants are condemned to pay only those costs which they legally are obligated to pay.

AFFIRMED.


author: CUTRER, Judge. WATSON, J.,

text:
    Dorothy Ardoin CAMPBELL et al., Plaintiffs-Appellants, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Defendant-Appellee.
    No. 5418.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 21, 1976.
    Writ Granted July 2, 1976.
    A. Gaynor Soileau, Ville Platte, for plaintiff s-appellants.
    Allen, Gooch & Bourgeois by Michael Harson, Lafayette, for defendant-appellee.
    Before WATSON, CUTRER and PAVY, JJ.
   CUTRER, Judge.

This is an appeal from a judgment dismissing a portion of plaintiff’s claims for workmen’s compensation benefits. An answer to the appeal has been filed by the defendant in connection with the assessment of statutory penalties and attorney’s fees. We reverse with respect to the granting of penalties and attorney’s fees.

Plaintiff, Mrs. Dorothy Ardoin Campbell, brought suit individually and on behalf of her minor child, Iris Ann Campbell, against defendant, Fidelity & Casualty Company of New York, for medical benefits allegedly due under Louisiana’s Workmen’s Compensation Statutes. The claim arose out of an alleged work-related accident suffered by plaintiff’s husband, which resulted in his death. A stipulation of facts between the parties included the following facts: that plaintiff and her husband were married on August 1, 1953; that plaintiff’s husband received bodily injuries during the course and scope of his employment for Evangeline Timber Company on May 5, 1973, which resulted in his death on July 8, 1973; that the total medical expenses incurred as a result of the work-related injuries amounted to $20,035.-38; that $12,500.00 of that amount had been paid by defendant; and that at the termination of the community existing between plaintiff and her husband at the time of his death, the community had a total value of $67,263.98.

The issue before the trial court was whether under LSA-R.S. 23:1203 plaintiff was entitled to recover additional medical benefits from defendant in excess of the $12,500.00 already received. At all times pertinent to this litigation LSA-R.S. 23:1203 provided as follows:

“The employer shall in every case coming under this Chapter, furnish all necessary medical, surgical, hospital services and medicines or any nonmedical treatment recognized by the laws of this state as legal, not to exceed the total sum of twelve thousand five hundred dollars, ($12,500.00), except in cases of undue and unusual hardship as hereinafter provided, unless the employee refuses to allow them to be furnished by the employer.
******
“Upon a showing by the injured employee in a court of competent jurisdiction by a preponderance of the evidence that as a result of the injury he necessarily requires medical, surgical or hospital services or medicine to a sum in excess of twelve thousand five hundred dollars ($12,500.00) and that unless same are furnished by the employer he will be subjected to undue and unusual hardship, the court in its discretion may order the employer to furnish same, not to exceed the additional sum of twelve thousand five hundred dollars ($12,500.00).”

Whether plaintiff is entitled to receive additional medical benefits under the above-quoted statute depends on whether she has proved by a preponderance of the evidence that unless the additional amount in excess of $12,500.00 is furnished by the defendant she will be subject to undue and unusual hardship.

After trial on the merits the trial judge rendered judgment denying plaintiff’s demand for the additional medical benefits on a finding that there was no “undue and unusual hardship” in the present situation. We find no error on the part of the trial judge in his determination on this issue. The stipulation of facts entered into by the parties reveals that $7,535.38 of the total medical expenses incurred was not paid for by the defendant under the provisions of the above statute.. In addition, the stipulation reveals that at the time of the death of the decedent, the community existing between plaintiff and her husband up until its termination by his death was valued at $67,263.98. This total is made up of the following component parts: immovable and movable property situated in Evangeline Parish totalling $50,663.98, less the value of ten shares of stock in the Evangeline Timber Company; immovable property situated in Allen Parish valued at $1,000.00; and the ten shares of stock in the Evangeline Timber Company which yielded cash when sold in the amount of $15,600.00. The testimony of the plaintiff indicated that she had two daughters, one married no longer living with her and the other a minor for whom she was financially responsible. In addition, her testimony indicated that no money was owed on the family home or on the family automobile. Her only financial obligations involved payment of $125.00 for a patio set, and the normal day-to-day expenses incurred in obtaining such things as food, clothing and utility services. We find that the evidence presented amply supports the trial judge’s finding of no undue and unusual hardship. We affirm the trial judge’s determination that plaintiff is not entitled to receive any further medical benefits under LSA-R.S. 23:1203.

The next issue before the trial judge involved plaintiff’s allegation that she was entitled to penalties and attorney’s fees under LSA-R.S. 22:658. This claim was based on the contention that on November 21, 1974, the date of the taking of plaintiff’s deposition, demand was made by plaintiff’s attorney to defendant’s attorney for payment of the funeral expenses under the provisions of LSA-R.S. 23:1210. Plaintiff alleged that payment of the funeral expenses was made on February 6, 1975, and that since more than sixty days had passed since demand had been made. Defendant should be assessed with penalties and attorney’s fees under the provisions of LSA-R.S. 22:658. The trial judge granted this claim and defendant has answered the plaintiff’s appeal requesting a rejection of this claim. We reverse on finding that payment was made within sixty days of demand and proof of loss.

LSA-R.S. 22:658 provides as follows:

“All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proof of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefore, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, . . . together with all reasonable attorney’s fees for the prosecution and collection of such loss, . .” (Emphasis ours)

The record reveals that plaintiff’s attorney made a demand for the payment of the funeral expenses incurred by plaintiff on November 21, 1974. A request was made by defendant’s attorney for copies of the bills sent to plaintiff in connection with the funeral expenses in order to establish that plaintiff had in fact paid in excess of the statutory limit of $1,000.00. By letter dated December 20, 1974, a copy of which was placed in evidence, plaintiff’s attorney sent to defendant’s attorney copies of those bills. Less than sixty days later, on February 6, 1975, payment was made to plaintiff by check drawn by defendant for the maximum amount set forth in LSA-R.S. 23:1210, since the funeral expenses exceeded that maximum.

The above-quoted statute requires not only a demand for payment but also satisfactory proof of loss. Steadman v. Pearl Assurance Co., 242 La. 84, 134 So.2d 884 (1961); Gatte v. Coal Operators Casualty Co., 225 So.2d 256 (La.App. 3rd Cir. 1969). In the present case proof of the loss was not provided by plaintiff until the bills were sent to defendant’s attorney on December 20, 1974. Until that proof of loss was received by defendant, it was not known by defendant whether the statutory maximum, or a lesser amount, had to be paid to plaintiff under LSA-R.S. 23:1210. Since payment was made on the claim within the sixty day period provided by LSA-R.S. 22:658, penalties and attorney’s fees are not due in this case.

For the reasons assigned, the judgment of the trial court dismissing plaintiff’s claim in connection with the medical benefits provisions of Title 23 of the Revised Statutes of 1950 is affirmed. That portion of the judgment granting plaintiff’s claim for penalties and attorney’s fees is reversed and that claim is hereby rejected at plaintiff-appellant’s costs.

AFFIRMED IN PART AND REVERSED IN PART.

WATSON, J.,

concurs as to reversing the award of penalties and attorney fees but dissents as to affirming the denial of additional medical expenses, being of the opinion that payment of $7,000 plus in medical expenses by the widow constitutes undue and unusual hardship.


author: GUIDRY, Judge. WATSON, Judge

text:
    Lynwood Logan VALLEE, Plaintiff-Appellee, v. Pearl Hughes RICHARDSON et al., Defendants-Appellants.
    No. 5409.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 21, 1976.

      Polk, Foote, Randolph, Percy & Ledbet-ter by Edward G. Randolph, Alexandria, for defendants-appellants.
    Law Offices of W. T. McCain by Robert L. Kennedy, Colfax, and Charles B. Bice, Winnfield, for plaintiff-appellee.
    Before WATSON, GUIDRY and CUTRER, JJ.
   GUIDRY, Judge.

Plaintiff, Lynwood Logan Vallee, filed a possessory action seeking to be restored to the possession of a 20.75 acre tract of land situated in SE/4 of NE/4 Section 35, Township 7 North, Range 4 West. Plaintiff in addition sought the recovery of damages allegedly sustained as a result of the disturbance of his possession. Defendants, the widow and heirs of Amos Richardson, answered the petition generally denying the allegations thereof and filed a reconventional demand asserting title in themselves to the land in dispute. Plaintiff, as defendant in reconvention, filed a general denial to the reconventional demand, and in the alternative asserted his acquisition of the property by the prescription of thirty years.

The trial court found for plaintiff rejecting defendants’ demand in reconvention determining that defendants failed to make out their title to the property in dispute. The trial court rejected plaintiff’s demand for damages. Defendant thereafter perfected this appeal. Plaintiff has neither appealed nor filed answer to defendants’ appeal.

On September 14, 1927 Robert W. and Z. Amos Richardson acquired from Isaac McMills, among other lands, “that part of the Southeast Quarter of Northeast Quarter, North of Flat Bayou, . . . All in Section 35 Township Seven North Range Four West . . . ” In the year following, the Richardsons constructed a fence so as to enclose the land acquired from Mc-Mills with that previously owned by them and situated west thereof. Survey plats filed in evidence establish that the fence was erected upon the south line of the Richardson estate until it reached the northwest corner of Southeast Quarter of Northeast Quarter of Section 35 at which point the fence ran southeasterly to a point where it intersected the north line of the property in dispute, thence ran easterly to the section line between Sections 35 and 36, which section line formed the east boundary line of the Richardson estate. The fence so constructed was maintained in place until the year 1970 at which time plaintiff-defendant in reconvention (hereafter referred to as Vallee) having presumably acquired the balance of SE/4 of NE/4 Section 35 T. 7 N., R. 4 W. replaced the old fence with a new fence erected upon the same line followed by the 1928 Richardson fence.

In the fall of 1971, defendants-plaintiffs in reconvention, successors in title of Robert W. and Z. Amos Richardson (hereafter referred to as Richardson) removed the Vallee fence and erected a new fence south enclosing the property in dispute with the Richardson lands to the north. Upon this happening Vallee filed the instant suit.

The trial court determined and we believe correctly so that Richardson, by asserting title to the disputed tract, converted this possessory action into a petitory action and judicially confessed the possession of Vallee. (LSA-C.C.P. Article 3657). Having done so Richardson has the burden of proof to “make out his title thereto” (LSA-C.C.P. Article 3653). The burden which rests upon one asserting title to immovable property against one in possession is to prove a valid record title good against the world without regard to the title of the party in possession. Deselle v. Bonnette, 251 So.2d 68, writ refused Oct. 18, 1971 (3rd Cir. La.App.1971); and, Pure Oil Company v. Skinner, 294 So.2d 797 (S.Ct.La.1974).

The trial court held that although Richardson established a valid record title to all of SE/4 of NE/4 Section 35 T. 7 N., R. 4 W., north of Flat Bayou that they failed to establish by a preponderance of the evidence that the disputed 20.75 acre tract was included within this description. We find that Richardson’s burden to “make out his title” necessarily included the burden to establish that the tract in dispute was in fact located north of Flat Bayou. Stated another way Richardson’s burden in making out his title included the burden of establishing the location of Flat Bayou as it existed on September 14, 1927. Richardson contends that said Bayou in the year 1927 was located along the south line of the land in dispute. On the other hand, plaintiff contends that said Bayou in the year 1927 was located just south of and adjoining the fence constructed by Richardson across this quarter-quarter section in the year 1928. This determination is essentially a question of fact. The trial judge in his written reasons for judgment analyzed all of the evidence and set forth in detail his conclusions in regard thereto as follows:

“Plaintiff strongly contends that Amos Richardson left a “Texas gap” in the fence he erected at the Northeast Corner of the disputed tract. I am satisfied that a preponderance of the evidence establishes there was no gap. In reaching that conclusion, I accept the testimony of Mr. Clarence Spottsville, who has lived in the immediate vicinity of the land in dispute 72 years, owned land there for many years and leased the land now owned by Vallee for ten years. Additionally, I accept the testimony of Mr. Lynwood Vallee and Mr. Jesse McBride that there was no gap in the fence in 1970. I further find that Amos Richardson did not cut timber upon the disputed tract or exercise any other acts of ownership thereon from his acquisition in 1927 until his death except the excavation of a ditch in 1964. Plaintiffs in reconvention testified about timber being cut under direction of Amos Richardson but their testimony reveals that they did not go south of the Amos Richardson fence and have no personal knowledge of cutting south of the fence. Mr. Thomas testified that he, in behalf of Vallee’s vendors, sold the timber south of the fence.

William McMills, grandson of Isaac Mc-Mills, testified that he assisted in a survey of the McMills land by cutting brush and pulling a chain. In describing that survey, he stated “we ran over to the middle of Flat Bayou, from that point, we started due north right up the middle of Plat Bayou, run about a forty.” Later Mr. McMills testified that Flat Bayou ran east and west. Mr. McMills also testified that the Richardson land was in cultivation at the point the survey crew hit the Amos Richardson fence. The other testimony and evidence herein establishes, without question, that the Richardson land north of the disputed tract was low, marshy land covered with hardwood timber, uncleared and uncultivated.

In addition to the above testimony, I note from his testimony that he would have been only 12 or 13 years old when the survey was made. Additionally, he testified that the heirs of Isaac McMills conveyed 114 acres to Amos Richardson, including the land north of Flat Bayou, whereas Exhibit P-IV reveals the sale was made by Isaac McMills.

Mr. Barrett Gremillion, a registered surveyor, made a topographic survey of the disputed tract on October 1, 1973. His findings are reflected .on- Exhibit P-13. The Court, at the request of all counsel herein, inspected the area after this trial. From the evidence adduced at the trial and my personal view of the scene, Exhibit P-13, made in October, 1973, after the land was cleared and moulded for drainage and cultivation by Mr. Vallee, and after extensive drainage excavation by Mr. Richardson in 1964, bears no resemblance to the topography of the land in 1927. Additionally, Mr. Gremillion testified that the “depression” along the southline of the disputed tract had not been dredged or cleared out and looked natural and he described it as a bayou. The testimony of Mr. Goss, Mr. Beason, and Mr. Bush, as well as the physical appearance of the area as observed by me, refute his testimony.

Mr. Gremillion was of the opinion that Flat Bayou lies along the south line of the disputed area, which was initially designated to him as Flat Bayou by a Mr. Craig, who did not testify. In forming that opinion, he used two topographic maps issued by the United States Geological Survey and are in evidence as Exhibits P-X and P-XI. His conclusion depends upon the vertical and horizontal accuracy of those exhibits. A pamphlet entitled “Topographic Maps”, also issued by the United States Geological Survey, in evidence as Exhibit P-XII, states that national standards for vertical and horizontal accuracy were not adopted until 1941 and that maps that meet those standards carry a statement to that effect in the lower margin. Exhibit P-X was published before any standards were adopted and Exhibit P-XI does not bear the notation ■ mentioned and they are not shown to possess the accuracy attributed to them by Mr. Gremillion.

Mr. Charles Beason, a registered surveyor, who made an extensive tour of the area, frankly admitted that he did not know where Flat Bayou was located. He began his original survey at the Northeast corner of the 20.75 acres at the Amos Richardson fence, assuming “this was where someone had at one time taken the bayou to be.” His second survey originated at the Southeast Corner at the “dug ditch” that a Mr. Craig, who did not testify, pointed out to him as Flat Bayou.

Jesse Goss, employed by the Soil Conservation Department, testified from notes made by Woodrow Sheppard who was not called as a witness. Mr. Goss assisted in the drainage project for the Richardson lands in 1964 and used Exhibits P-18 and P-19 in his testimony. Those exhibits are aerial photographs and there is no evidence establishing Mr. Goss as an expert in that field or in the identifying the exhibits as photographs of the land involved. The aerial photographs are identified only by Mr. Goss and their introduction into evidence was subject to Vallee’s objection to the lack of predicate. The objection is sustained. In his testimony Mr. Goss referred to the area along the south line only as a “slough”. He did not testify as to the location of Flat Bayou.

Mrs. Melba Thomas was a former owner of the land conveyed by her and her brother to Vallee. She and her husband, Maurice Thomas, were not familiar with the land and did not know the location of Flat Bayou.

Mr. Robert Bush, who worked for Amos Richardson, testified that Flat Bayou was located ISO feet south of the Amos Richardson fence. Mr. Henry Bush, who lived in the vicinity of the Richardson and McMills lands testified there were two bayous, Flat Bayou and Mills Bayou, located in the area and did not testify as to the location of Flat Bayou.

Mr. P. J. Redmond worked for Amos Richardson from 1923 until 1946. In 1928 or 1929, he assisted with the building of the fence that has been herein referred to as the Amos Richardson fence. He testified that Amos Richardson blazed the line for the fence, that Flat Bayou was 400 to 500 yards south of the fence, that Mr. Richardson claimed ownership of the land between the fence and Flat Bayou but that he did not know anything about the ownership of that strip of land. He also testified that Mr. Richardson did not have any cattle south of the fence, that cattle owned by Dowden grazed south of the fense, that in the winter the bayou did not go up to the Amos Richardson fence “but the water do”, and that in the fall, winter and spring “it was all water”.

Mr. Claude Orr, who was reared on the Richardson and McMills places, testified that the Amos Richardson fence was a “good 300 feet” north of Flat Bayou and the line between the Richardson and Mc-Mills lands was 30 to 40 feet north of the bayou. Mr. Orr admitted that after Amos Richardson erected his fence, McMills farmed the land between the bayou and the fence and grazed cattle thereupon, that Dowden bought the McMills lands and also grazed cattle to the fence.

Mr. John Richardson, Mrs. Craig and Ms. Barbara Richardson had little knowledge of the land in dispute prior to 1970. Their testimony as to a logging road running through a gap in the Amos Richardson fence to the tract in question is refuted by other witnesses. At the time of the Court’s visit, no tracks were visible south of the north line of the 20.75 acres, and, while a few ruts were seen north of the north line, logs, brush and other debris had been recently moved back and branches and limbs were freshly clipped to give the appearance of a road. As the scene had been tampered with immediately prior to my visit, I was unable to determine if there was any evidence of an old logging road north of the disputed area.

Mr. Clarence Spottsville testified that he and Mr. Dowden ran cows on the disputed area, that he knew of “what you say a slough” in the area and that “you have low places all over.” He further testified that he leased the Dowden place and McMills place for 10 years around 1957 from “fence to fence” and that he never knew of any Flat Bayou in the area.

Mr. Lynwood Vallee testified that he discussed the building of a new fence with Mr. Amos Richardson and Mr. Richardson did not indicate that he owned or claimed any land south of the old fence. Ms. Barbara Richardson testified that she was present during that meeting and that Mr. Richardson told Mr. Vallee he owned land south of the fence.

I conclude from all the evidence that plaintiffs in reconvention have failed to discharge the burden of proof imposed upon them of making out their title to the disputed tract of land and establishing by a preponderance of the evidence that the description “all of the Southeast Quarter of Northeast Quarter north of Flat Bayou” included the 20.75 acres.”

In the recent case of Canter v. Koehring, 283 So.2d 716 (La.1973) the Louisiana Supreme Court clearly defined the principle of appellate review of facts to be as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also on the proper allocation of trial and appellate functions between the respective courts.”

Our review of the record in this case reveals that the trial court’s judgment meets the standard of reasonableness set forth in the Canter case.

Plaintiff urges in brief that the trial court judgment be amended so as to award him damages. As previously set forth plaintiff has neither appealed nor answered the appeal of defendants and therefore the trial court judgment which rejected Vallee’s demand in damages must remain undisturbed.

For the foregoing reasons, the judgment appealed from is affirmed at the appellants’ costs.

AFFIRMED.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge

(dissenting):

This case presents a peculiar fact situation since defendants have record title to:

“ . . . the Southeast Quarter of Northeast Quarter (Section 35, Township 7 North, Range 4 West) North of Flat Bayou.” (TR. 173).

The question is not their title to the property but whether the 20.75 acres in dispute are included within the description. Properly this is an action to fix boundaries under LSA-C.C.P. art. 3691 because:

“ . . . the bounds which have been formerly fixed are no longer to be seen,. . .”

Flat Bayou was a fixed and visible boundary in 1927. It can be seen on two topographic maps, which were mapped, edited and published by the United States Department of the Interior Geological Survey on the basis of surveys in 1933-1934. (P-X and P-XI). Clearly, the water course of Flat Bayou has experienced a change; it is no longer visible. See LSA-C.C. arts. 823, 828. However, this should not operate to change the ownership of the land.

“Parties who buy on the faith of the public records showing the limits of their estates as fixed by courses and distances are entitled to keep what is there shown to be in the estate purchased by them.” Ledoux v. Waterbury, 292 So.2d 485 at 487 (La.1974).

When the question is whether an area in dispute between adjoining landowners is included within a record title, the fact that the suit is named a petitory or possessory action rather than a boundary action does not prevent the suit from being an action in boundary. Poirier v. T. L. James & Co., 163 So.2d 171 (La.App. 4 Cir.1964). When the purpose is to locate a certain line, a boundary action rather than a peti-tory action will lie. Derouen v. Poirier, 163 So.2d 131 (La.App. 3 Cir.1961). This action is correctly denominated an action in boundary. It is important that the real nature of the action be recognized, as set forth in Russell v. Producers’ Oil Co., 143 La. 215, 78 So. 473 (1918):

“It is important that the character of the present action be definitely ascertained and fixed in order to place the burden of proof where it properly belongs. In a petitory action, that burden is upon plaintiff who can recover only on the strength of his own title, and not upon the weakness of his adversary’s. In an action in boundary, the law requires proof from each of the contiguous owners, and the burden is divided. In a pet-itory action, the court will either nonsuit plaintiff or dismiss his demand if he fails to prove his ownership by a preponderance of evidence, while iñ a boundary suit the court may, when not satisfied either from the lack of evidence or the weakness of its probative force, cause, ex proprio motu an investigation by experts in order to ascertain the facts necessary to reach an intelligent conclusion and to render a proper decree.” 78 So. 475.

Here, the trial court and the majority err in the burden of proof required of the Richardsons, defendants and plaintiffs-in-reconvention. The action is properly one in boundary and should have been treated as such. LSA-C.C.P. art. 3693. See McCartney v. Stafford, 307 So.2d 782 (La.App. 3 Cir.1975) where a petitory action which actually turned on a question of boundary was reversed and remanded for consolidation with a pending boundary action in order to do substantial justice to the parties. Almost exactly the same situation is presented here, but there is a contrary disposition by the same court. The result reached by the trial court and the majority relies on technical rules of pleading to divest the Richardsons of hereditary land.

I respectfully dissent.

      . The property in dispute is erroneously described in plaintiff’s petition and in the trial court judgment as being situated in NW/4 Section 35, T. 7 N., R. 4 W., but is otherwise correctly described by reference to a survey thereof by L. J. Daigre.