author: ELLIS, Judge.

text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. J. Walter SMITH.
    No. 11582.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Granted Feb. 10, 1978.

      Johnie E. Branch, Jr., Bryan Miller, Baton Rouge, for plaintiff Louisiana Dept, of Highways.
    Joseph H. Simpson, Amite, for defendant J. Walter Smith.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

This is an expropriation case in which the State of Louisiana, through the Department of Highways, has taken 17.518 acres in full ownership, and drainage servitudes totalling 1.214 acres from an 85.682 acre tract of land belonging to J. Walter Smith. At the time of the taking, on May 17, 1965, the State deposited the sum of $3,125.00 as compensation, including $2,843.00 for the parcel taken and $282.00 as severance damages.

The original tract lies in the South half of the Southwest Quarter and the Northeast Quarter of the Southwest Quarter of Section 35, Township 6 South, Range 5 East, in Livingston Parish. Along the southerly portion of its East line it fronted on the Tickfaw River, some five miles above the head of navigation. The parcel expropriated was taken for the right of way of Interstate Highway 12, a limited access highway, and runs across defendant’s property in an East-West direction, leaving a remainder to its North of 65.16 acres, and a remainder to the South of 1.79 acres.

Several hundred feet to the east of the subject property, on property of other owners which was appropriated for the purpose, the Tickfaw River was diverted, so that its main channel no longer flows past defendant’s property, which now fronts on a slough through which water flows only when the river is high.

In his answer, defendant alleged that the property taken was worth $500.00 per acre, and that he suffered severance damages of $1,000.00 per acre for the South remainder, $100.00 per acre for the North remainder, and $10,000.00 because of the diversion of the Tickfaw River.

After trial on the merits, judgment was rendered, awarding $10,772.84 over and above the amount deposited. From that judgment, the Department has appealed, asking that it be reduced to a gross amount of $3,441.00. Defendant has answered the appeal asking that the award be increased.

In this court there is a contest as to the value of the part taken, severance damages to the South remainder, and damages resulting from the diversion of the channel of the Tickfaw River. Only two expert witnesses testified, one on each side: Edward J. Deano for the Department and James E. Carpenter for the defendant.

Both experts agreed that defendant was entitled to be compensated 100% for the drainage servitudes, so that a total of 18.-732 acres was involved in the taking. Mr. Deano arrived at a per acre value of $175.00 and Mr. Carpenter found a value of $569.00. Mr. Deano used five comparable sales for his estimate, dated from three to six years earlier than the taking, from six to 12 miles distant from the parcel taken, and ranging in size from 38.82 to 80.96 acres. These gave per acre values of from $121.00 to $366.00 per acre. Mr. Deano made no adjustments for time or size, on the ground that all of his comparables had road frontage and the subject property had no road access. He did not think that the frontage on the Tickfaw River gave any added value to the property. In addition to the $175.00 per acre value, Mr. Deano found severance damages of $156.00 to the South remainder, which he thought contained 1.46 acres rather than 1.79 acres.

In evaluating his testimony, the trial court said:

“The Highway Department used appraiser Deano, who gave three comparables in Livingston Parish. The Court does not feel that comparables in Tangipahoa Parish, some 12 miles to the east, are compa-rables. Of the three comparables, one was suspect on its face because the vendor had bought from the vendee’s relatives and the Highway Department admitted that they had not looked into this transaction to see if it were an arm’s length transaction or not. The third comparable used by the Highway Department was 117.42 acres at $124.00 per acre, and during a recess, it was discovered that, actually, this was a wrong amount of acreage and that, actually, the land had sold for $300.00 per acre. Therefore, the comparables of the Highway Department should have been $366.00 and $300.00 per acre, which are a far cry from the amount allowed.
“In view of the fact that the expert for the Highway Department comparables was so out of line, the Court is entitled to disregard his testimony completely. Further examples of the Highway Department’s appraiser’s mistakes were that he thought that the land was inaccessible yet a map was introduced showing that there had been a road there for many years, maintained by the police jury, and the Highway Department should have taken this into consideration.”

We find no manifest error in this determination by the trial judge.

Mr. Carpenter used only two comparable sales. One of these was of a 7.18 acre tract about a mile and a half from the subject property, which sold for $488.00 per acre in March, 1964. He adjusted this sale up $50.00 an acre for time, down $100.00 an acre for size and up $100.00 per acre for location, because of the river. This gives an indicated value of $538.00 per acre. Mr. Carpenter’s other comparable was a one acre tract fronting on the Tickfaw River, which defendant had sold from the Southeast corner of the original tract a few months before the taking, for $800.00. The trial judge accepted his estimate of $569.00 per acre, based on these two comparable sales. Since all of Mr. Carpenter’s testimony came in without objection, we find that it expanded the pleadings to allow for an award greater than the $500.00 per acre demanded therein.

Although we do not find Mr. Carpenter’s testimony any more logical or soundly based than that of Mr. Deano, we are unable to say that there is manifest error in accepting Mr. Carpenter’s testimony in this respect.

However, for reasons which are not clear and despite his adoption of Mr. Carpenter’s opinions, the trial judge awarded $800.00 per acre for ten acres of the property taken, and $569.00 per acre for the remainder. This conclusion is not sustained by the record and is, therefore, manifestly erroneous. The proper award for the taking of the right of way and the drainage servitudes should have been for 18.732 acres at $569.00 per acre, or $10,658.51.

With respect to severance damages to the South remainder, Mr. Deano estimated an award of $156.00. As pointed out above, he was of the impression that there were 1.46 acres rather than 1.79 acres as shown by the map on file in the record. It is not clear how Mr. Deano arrived at this figure, but it appears to be approximately 60% of the value of 1.46 acres at $175.00 per acre.

Mr. Carpenter felt that the South remainder, which forms a long triangle, which is about 85 feet wide and about 2,000 feet long, and divided into two pieces by one of the drainage servitudes, was of no value to Mr. Smith, and gave severance damages of 100% of 1.79 acres at $569.00 per acre. The trial judge awarded 100% of 1.46 acres at $569.00 per acre.

In view of the shape of the parcel, its small size, and the fact that it is completely isolated by the taking, we cannot find manifest error in giving 100% of its value as severance damages. However, the award should have been made for the full acreage of the remainder, 1.79 acres at $569.00 per acre or $1,018.51.

With respect to the damages suffered by the North remainder, a different question is presented. It is conceded that no severance damages resulted from the taking of the 17.518 acres and the drainage servitudes. However, it is contended that the property fronting on the Tickfaw River was damaged by the diversion of the main channel thereof. We think the record sustains a finding that the property fronting on the river had a value of $800.00 per acre, and that ten one acre sites could have been located along the river. We think the record also supports the conclusion that, by virtue of the diversion of the river channel, these sites are no longer of any value as camp sites and have the same value as the remainder of the property.

It is also clear that the damages sought do not arise from the taking in this case, but as the result of the taking on the adjacent property, and the location of the main channel of the Tickfaw River thereon.

Considering the foregoing, we are of the opinion that whatever damages may have been suffered as a result of the relocation of the Tickfaw River are not recoverable in this case. We recognize that damages may be recovered in an appropriate proceeding when property is damaged for public purposes, even when there is no expropriation of a portion thereof. Article I, § 2, Constitution of 1921. However, it is also settled that “in an expropriation suit, the issue must be confined to ascertaining the market value of the property and the damage growing out of the expropriation, at the date when suit was filed, and to nothing else.” Louisiana Highway Commission v. De Bouchel, 174 La. 968, 142 So. 142 (1932). Since the loss in value arising from the diversion of the Tickfaw River did not result from the expropriation, it cannot be recovered in this suit.

The judgment appealed from is therefore amended to make the amount thereof $11,-677.02, subject to a credit for the amount deposited of $3,125.00, or $8,552.02, together with legal interest at the rate of 5% per annum from the date of the taking until paid. The Department shall pay all costs for which it may be liable under the law.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    Herbert EDWARDS v. Josie M. GIAMBRONE et al.
    No. 11584.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.
    Dan B. Cornett of Taylor & Cornett, Ltd., Baton Rouge, for plaintiff-appellant.
    Robert J. Vandaworker of Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-appellees.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

This is an appeal by Herbert Edwards from a judgment dismissing his suit for want of prosecution.

The record reveals that this suit was originally filed on July 26, 1963. Answer was filed and interrogatories propounded later that year. In September, 1967, a motion to fix for trial was filed, but the assignment was stricken because of the failure of plaintiff to answer the 1963 interrogatories. Subsequently, the answers were filed, and a motion to assign for trial was filed on June 17, 1970.

A set of Supplemental Interrogatories were filed in the record by defendants on October 1,1970, a copy thereof having been mailed to plaintiffs counsel. Answers thereto were taken in the case until September 9,1975, when a motion to assign for trial was filed on behalf of plaintiff.

Defendants then filed a motion to dismiss on the ground of abandonment, and, after a hearing, the motion was sustained and the suit dismissed. This appeal followed.

Article 561 of the Code of Civil Procedure provides, in part, as follows:

“An action is abandoned when the parties fail to take any steps in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.”

In the case of Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975), the court said:

“By its clear and unambiguous wording, article 561 requires three things of the plaintiff: (1) that he take some ‘step’ in the prosecution of his lawsuit, (2) that he do so in the trial court, and (3) that he do so within five years of the last ‘step’ taken by either party.”

The question presented in this case, therefore, is whether the filing in the record of the interrogatories and the answers thereto constitutes a step in the prosecution or defense of the case. We hold that it does. The discovery of information necessary to the prosecution or defense of a case is a necessary step in the preparation thereof; these things were done within five years of the filing of the motion to dismiss; and they appear in the record in the case.

The case of De Clouet v. Kansas City Southern Railway Company, 176 So.2d 471 (La.App. 3rd Cir. 1965), which is cited as authority for the proposition that discovery procedures are not steps in the prosecution or defense of a case is inapposite. It applies only when the discovery is carried out dehors the record. See Robertson v. Sightler, 304 So.2d 875 (La.App. 2nd Cir. 1974).

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

REVERSED AND REMANDED.


text:
    John F. SANCHEZ v. TRUSTEES OF the PENSION PLAN, etc., et al. Louis DE JOHN v. TRUSTEES OF the PENSION PLAN, etc., et al.
    Nos. 11587 and 11588.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Granted Feb. 17, 1978.
    W. P. Wray, Jr., Baton Rouge, of counsel, for plaintiffs-appellees, John F. Sanchez and Louis De John.
    C. Paul Barker, New Orleans, of counsel, for defendant-appellant, Trustees of the Pension Plan, etc., et al.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

In these two consolidated cases, we must determine if the plaintiffs, John F. Sanchez and Louis De John, are “employees” eligible to participate in the pension and welfare trusts created pursuant to the collective bargaining agreement between Associated Mechanical Contractors of Baton Rouge, Inc. and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of United States and Canada, Local Union No. 198.

The trial judge summarized the stipulated facts of the case as follows:

“Louis DeJohn became a journeyman in Local Union 198 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, hereinafter referred to as 198, on May 23, 1949, and has been a member in good standing of 198 since 1949. Prior to that time, he had been an apprentice member. As a union member, he has always paid his dues, working assessments, death assessments, and all other sums required of him by the union.
“John F. Sanchez joined 198 in May of 1953 and has been a member in good standing of 198 since that time. As a union member, Sanchez has always paid his dues, working assessments, death assessments, and all other sums required by the union.
As union members, De John and Sanchez are entitled to all rights and privileges and subject to the same duties as all other union members except they are not entitled to vote in union matters because they are now considered part of management.
“In September of 1960, DeJohn was duly certified as a master plumber. On September 13, 1960, Louis Mechanical Contractors, Inc., was incorporated with De John as one of the principal stockholders, owning 50 per cent of the stock. De John is and always has been president of the corporation and a member of its Board of Directors.
“In 1967, Sanchez was certified as a master plumber. In May of that year, John F. Sanchez Plumbing Company, Inc., was formed with Sanchez as a 50 per cent owner and president of the corporation. “In June of 1959, 198 created the Health & Welfare Trust Fund and the Education Trust Fund. In October of 1963, 198 created the Pension Trust Fund.
“Both DeJohn and Sanchez participated in these trust funds at their inception and contributions were made to the funds by their respective employers without question until May of 1973. After September of 1960, Louis Mechanical Contractors, Inc., reported to the funds that Louis DeJohn was employed by it and contributions were made to the funds on his behalf by the corporation. After May of 1967, John F. Sanchez Plumbing Company, Inc., reported to the funds that John F. Sanchez was employed by it and contributions were made to the funds on his behalf by the corporation. Contributions were made to the funds pursuant to the master working agreement and the trust agreements in exactly the same manner as contributions for other covered employees.
“All three plans in question call for contributions by the employer based upon the number of hours worked, regardless of the salary or earnings of the employee in question. The amount of the contributions is set out in the master working agreement and was followed at all times. “On August 11, 1972, a letter was delivered to De John ordering him to walk a picket line. By letter of August 23, 1972, DeJohn was ordered to pay a fine of $30.00 for failure to walk the picket line. Enclosed with the August 23 letter was DeJohn’s dues check, which was refused by the union. The dues check was later accepted, without his paying the fine, in October of 1972.
“By letter dated May 11,1973, the contributions made on behalf of De John and Sanchez were returned to their respective corporate employers by check. The returned checks were refused by the corporations. To the present date, contributions have been continuously made to the plans at issue on behalf of DeJohn and Sanchez by their respective corporate employers in exactly the same manner as for any other covered employee.
“Subsequent to the May 11 letters, De-John and Sanchez secured a hearing from the trustees of the various plans. At that hearing, held October 4,1973, the trustees determined that DeJohn and Sanchez were ineligible to be members of the various trust funds.
“Union dues and assessments payments are made directly to the union by the employee. Contributions to the respective trust funds are made to the trustees by the employer on behalf of the employee. Contributions on behalf of DeJohn and Sanchez are continuing despite the advice of the trustees to DeJohn and Sanchez that they would no longer be covered.
“Both Louis Mechanical Contractors, Inc., and John F. Sanchez Plumbing Company, Inc., are members of the Mechanical Contractors Association. The association is represented by two employer trustees serving as regards the three trust funds in question. At one time, Louis DeJohn, as president of Louis Mechanical Contractors, Inc., served as president of the Mechanical Contractors Association.
“DeJohn and Sanchez seek an injunction permitting them to remain as beneficiaries of the benefits provided by each of the trusts and requiring the trustees to accept contributions on their behalf from their employers. Alternatively, the plaintiffs request the return of all contributions made to the trust plan. Additionally, the plaintiffs name the union as a defendant and alternatively ask for the return of all dues and assessments paid to the union.
“The defendants answer that DeJohn and Sanchez are not eligible to participate in the various trusts and that contributions already made on their behalf to the funds cannot legally be returned to them.”

Contributions to the various trusts which are made by employers only, are permitted by § 302(c)(5) of the Labor Management Relations Act, 61 Stat. 136 et seq., 29 U.S. C.A. § 186(c)(5), which allows such contributions “with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, and their families and dependents.”

Defendants argue that the definition of “employer”, “employee”, and “supervisor” contained in 29 U.S.C.A. § 152, make it clear that the plaintiffs herein are not “employees” under Section 302(c)(5). However, Federal courts have said that officer and supervisory employees are not excluded by Section 302(c)(5) from participation in such a trust. Blassie v. Kroger Company, 8 Cir., 345 F.2d 58 (1965).

We therefore conclude that the right of participation depends on the language of the trust instruments themselves.

Article I, Section 2 of the Pension Plan Trust defines employees as “all of the Employees of each Employer for whom the Union is the collective bargaining representative, and for whom contributions are made . . . ” Article V, Section 2 thereof provides:

“RECIPIENTS OF BENEFITS. Benefits may be provided in accordance with Section 1 of this Article only for any Employee of a contributing Employer covered by a collective bargaining agreement between the Employer and the Union, salaried Employees of the Union for whom contributions are made by the Union, and such other Employees whom the Trustees shall determine to be Employees.”

Article I, Section 1.3 of the Health and Welfare Plan Trust states:

“1.3 EMPLOYEES. The term “Employees”, as used herein, shall mean all of each Employer’s hourly paid employees for whom the Union is the collective bargaining representative, and/or for whom contributions are made, and such other employees whom the Trustees shall determine to be employees.”

Article II, Section 2.3 says that “All questions with regard to the eligibility of employees for benefits . . . shall be determined by the Trustees and their decisions shall be final and binding.”

Article I, Section 1.3 of the Educational Plan Trust is exactly the same as the same section in the Health and Welfare Trust.

The district judge found that Local 198 is the collective bargaining representative of the plaintiffs because they are members of the union, had designated the union as such when they first joined, and had never revoked that designation. We cannot agree.

It is clear from the record that both of the plaintiffs are the top executive officers of their respective corporations, with full authority to carry out administrative functions, including hiring and firing of personnel, giving out work assignments, and perform other functions which place them in the management category. It would be unrealistic to pretend that these individuals can, at the same time, be employees and employers in the collective bargaining process.

However, we are of the opinion that plaintiffs are not ineligible to participate in the various trust funds because the union is not their collective bargaining representative. Under the specific provisions of the trust agreements quoted above, the trustees are vested with broad discretion in determining benefit eligibility. All three trusts have provisions similar to the one in the Pension Plan Trust, which provides that benefits may be received by “any employee of a contributing employer covered by a collective bargaining agreement,” and by “such other employees whom the Trustees shall determine to be employees.”

The trustees clearly have the discretion to include as beneficiaries persons who are not encompassed in the trusts’ definitions of employees including persons who are not represented by the union.

We are therefore of the opinion that the Pension Plan Trusts are susceptible of an interpretation which would make employees of a corporation, who are major stockholders and executive officers thereof, eligible for benefits thereunder. We are further of the opinion that the record reflects that the Trustees were, or should have been, aware of the positions of plaintiffs relative to their respective corporate employers, and that, in accepting the contributions made on their behalf over a period of many years, have impliedly so interpreted the plan as to make plaintiffs eligible for benefits. See Article 1956 of the Civil Code. We do not believe that by changing their interpretation of the trust provisions the trustees can deprive a beneficiary of a right of participation already granted him.

We therefore hold that plaintiffs are “employees”, eligible to participate as beneficiaries in the various trusts which are the subject of this litigation.

The judgment appealed from is affirmed, at defendants’ cost.

AFFIRMED.


author: BLANCHE, Judge.

text:
    Perry M. SEGURA, d/b/a Perry Segura & Associates v. LOUISIANA ARCHITECTS SELECTION BOARD et al.
    No. 11589.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Granted Feb. 10, 1978.

      J. Burton Willis, St. Martinville, Max N. Tobias, Jr., New Orleans, William P. Brum-field, Baton Rouge, of counsel, for plaintiff-appellant Perry M. Segura, dba Perry Segu-ra & Associates.
    William J. Guste, Jr., Atty. Gen., Thomas S. Halligan, Patrick J. Briney and Kenneth C. DeJean, Asst. Attys. Gen., Baton Rouge, of counsel, for defendants-appellees Louisiana Architects Selection Board, et al.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Perry M. Segura, d/b/a Perry Segura and Associates, plaintiff-appellant, appeals from a denial of a rule to show cause why the defendants-appellees (hereinafter referred to as the “State”) should not be condemned to pay costs or, alternatively, why the costs should not be refunded by various clerks of the courts through which the litigation has passed. The matter before us arises out of the principal action wherein Segura was granted a declaratory judgment affirming the existence of a contract between him and the State, allowing him a fee of $185,400 as designer of the Ellender Memorial Library at Nicholls State University, Thibodaux, Louisiana.

Segura brought his action in the appropriate district court which granted the declaratory judgment. The State appealed to the Court of Appeal, 1st Circuit, which held:

“The judgment appealed from is therefore affirmed. The State shall pay whatever costs It may be responsible for under the law.” (340 So.2d 369, 371 [La.App. 1st Cir. 1976], writs refused, 342 So.2d 676 [1977] — Emphasis ours)

Segura makes only one argument on appeal which we regard as meriting an answer. This argument puts at issue the constitutionality of LSA-R.S. 13:4521 which relieves the State of the payment of all costs except stenographers’ costs for taking testimony. The text of the statute is as follows:

“Except as hereinafter provided, neither the state, nor any parish, municipality, or other political subdivision, public board or commission shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state or any such parish, municipality or other political subdivision, board or commission, in any court of this state or any municipality of this state, including particularly, but not exclusively, those courts in the Parish of Orleans and the City of New Orleans. This Section shall have no application to stenographers’ costs for taking testimony. As amended Acts 1964, No. 509, § 1.”

Segura contends that as a successful litigant costs should be assessed in his favor and against the State as the party cast as provided for in LSA-C.C.P. art. 1920. That article provides:

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

Segura argues that LSA-R.S. 13:4521 has been, in part, constitutionally overruled by the 1974 Louisiana Constitution in Article 12, § 10(A), which states:

“ * * * Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.”

It is submitted that the costs expended by Segura to have a judicial declaration of his rights under a contract are elements of liability for which the State must be cast in judgment, and, as a consequence, LSA-R.S. 13:4521 is unconstitutional insofar as it relieves the State of liability for costs. The trial judge rejected this contention and we are of the opinion that he is correct.

The obligation to provide funds to support the courts of the State is a legislative function. It has absolute control over the finances of the State except as limited by constitutional provisions. Woodard v. Reily, 244 La. 337, 152 So.2d 41 (1963); Article 3, § 22, Louisiana Constitution of 1921; Article 3, § 16, Louisiana Constitution of 1974. It is the Legislature that decides how the branches and departments of government shall be funded from the public fisc. It could have provided such revenues in full in the General Appropriations Act. However, it chose to fund the courts, in part, by assessing all litigants with costs of court, LSA-C.C.P. art. 1920, and exempting itself in part by virtue of the provisions of LSA-R.S. 13:4521. We do not find that Article 12, § 10(A), supra, has in any way limited the Legislature’s power in this respect.

Moreover, we do not regard costs as the type of “liability” referred to in the aforesaid constitutional provision. Costs may or may not be an incident of liability under the provisions of LSA-C.C.P. art. 1920, since their assessment may be against any party the court may consider as equitable. We believe the intent of the constitutional provision was to do no more than abrogate the judicial doctrine of sovereign immunity and give constitutional sanction to the requirement that the State be amenable to suits on contracts and for injuries to persons and property without first obtaining the permission of the Legislature. Board of Commissioners of the Port of New Orleans v. Splendour Shipping & Enterprises Company, Inc., 273 So.2d 19 (La.1973), decided prior to the constitutional convention.

Segura’s other attack on the constitutionality of the statute is that the failure to provide him a remedy to recover his costs and award him attorney’s fees is a denial of due process of law in violation of Article 1, § 2 of the Louisiana Constitution of 1974 and a taking of property without just compensation in violation of Article 1, § 4 of the Louisiana Constitution of 1974. He is unable to refer us to any authority in support of this proposition, and we merely dismiss the same by stating that there has been no taking of his property as in expropriation suits for a public purpose under an exercise of eminent domain which he erroneously contends to be analogous.

Finally, Segura has asked this Court to require the Clerks of the various courts with whom he has made deposits to refund them. We believe our opinion adequately disposes of this contention. Furthermore, even were plaintiff entitled to such relief, we would be hard pressed to grant it in the absence of the various Clerks of Court having been made parties defendant.

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

AFFIRMED.


text:
    Perry H. PARKER v. STATE of Louisiana et al.
    No. 11590.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.

      Robert D. Downing, Alexandria, of counsel, for plaintiff-appellant, Perry H. Parker.
    Patrick J. Briney, Baton Rouge, of counsel, for defendants-appellees, State of Louisiana, et al.
    Rhett Ryland, Baton Rouge, of counsel, for defendant-appellee, Houston Fire & Casualty.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Perry H. Parker, plaintiff-appellant, is appealing from a trial court decision denying him recovery in tort because of his contributory negligence and also denying him recovery under the workmen’s compensation statutes.

Parker was an inmate assigned by the Department of Corrections to work at the Louisiana State Penitentiary at St. Gabriel, Louisiana. While operating a table saw there, he suffered injuries to his left hand, including the loss of one joint of the thumb and the entire ring finger thereof.

The testimony at the trial was clear that while the table saw was suitable for ripping two by four’s, it was unsuited for manufacturing lumber to be used as lathing for re-screening a door. Parker was not instructed to use the saw but voluntarily, on his own initiative, elected to use the saw, knowing it to be inappropriate for the task. Parker was an éxperienced carpenter, and his deliberate use of a saw which he knew was not a suitable tool for the work he was attempting demonstrates a complete lack of care and disregard for his own safety amounting to contributory negligence and preventing his recovery in tort.

“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own safety and protection, the standard being that of a reasonable man under like circumstances. * * *” (Hall v. Hartford Accident & Indemnity Company, 278 So.2d 795, 798 [La.App. 4th Cir. 1973], writ refused, 281 So.2d 753.)

Parker was receiving two cents per hour as payment for his work at the penitentiary at the time he was injured. An identical factual situation was involved in Jones v. Houston Fire and Casualty Insurance Company, 134 So.2d 377 (La.App. 3rd Cir. 1961), where a plaintiff-inmate crippled his hand while working on a cotton ginning machine at the penitentiary. In Jones the Court held that an inmate receiving payment for work at a state penitentiary cannot be considered as an employee of the State for purposes of workmen’s compensation benefits where he suffers injuries while engaged in the work program. We find the Court’s reasoning persuasive. Accordingly, the plaintiff herein is not entitled to recover for his injuries under the workmen’s compensation statutes.

The judgment of the trial court is affirmed, plaintiff-appellant to pay all costs of this appeal.

AFFIRMED.


text:
    Sherman PHILLIPS et al. v. J. G. DUPLANTIS et al.
    No. 11591.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.
    Robert B. Butler, III, Houma, for plaintiffs and appellees.
    Philip J. McMahon, Houma, Edmund W. Golden, New Orleans, for defendants and appellants.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge:

This is a suit for damages for personal injuries suffered by Jeanne Picou Phillips when she fell out of the back door of a mobile home situated in a trailer park known as Faith Trailer Park or Effie’s Trailer Park, operated by J. G. Duplantis. The trailer in question was owned by Statewide Trailer Sales, Inc., a corporation wholly owned by Mr. Duplantis and his wife. The defendants were insured by St. Paul Fire and Marine Insurance Company and Travelers Insurance Company.

Plaintiffs in this suit are Mrs. Phillips and her husband, Sherman Phillips. Defendants are Mr. Duplantis, Statewide, St. Paul and Travelers. After trial on the merits, judgment was rendered in favor of plaintiff and against all defendants, from which judgment defendants have taken sus-pensive appeals.

The mobile home leased by plaintiffs had two doors leading- outside. The front door, which opened into the living room, was provided with steps leading up to it. The back door opened into a hall, and was immediately opposite the door to the bathroom. The back door opened out, and no steps were provided for it, so that there was a drop of 35 inches from the floor of the mobile home to the ground beneath. At the time that plaintiffs were leasing the mobile home, the door would sometimes stick and sometimes open easily. When they moved in, plaintiffs testified that they requested back steps, but were told that only one set of steps was provided for each mobile home in the trailer park. It is clear that Mrs. Phillips was aware that there were no steps or platform provided for the back door, and that it sometimes stuck and sometimes opened easily.

On the night of the accident, plaintiffs were entertaining friends in their living room. They had been smoking, and some beer was drunk, although Mrs. Phillips testified that she had little or no alcoholic beverages to drink that evening. Mrs. Phillips began coughing, and found it necessary to go to the bathroom, either to clear some mucus from her throat or to throw up. When she reached the bathroom, she found the door locked because the bathroom was occupied by her son. She then turned to the back door and, anticipating that it would stick, threw her weight against it. The door flew open and Mrs. Phillips fell to the ground outside, suffering the injuries complained of herein. On at least one occasion, Mrs. Phillips told one of her physicians that she fell out of the door because the wind caught the door when she opened it and pulled her out.

The trial judge found the defendants negligent in furnishing a trailer with a defective door, and in failing to provide a platform with a railing, and steps leading up to it just outside the door. He further found that Mrs. Phillips was not guilty of contributory negligence. He felt that it was not unreasonable or negligent for her to use the door, considering her need to expectorate or throw up in order to clear her throat.

We agree that using the door was not an unreasonable act. However, Mrs. Phillips’ manner of using it, in view of her complete knowledge of the alleged defects in the door, was not up to the standards of reasonable care. She was injured, not because of any defect in the door or the failure to provide steps or a platform, but because she ignored the existence of a possible hazardous condition of which she was fully aware.

Plaintiffs also claim the right to recover under Article 2695 of the Civil Code, which provides:

“The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”.

Generally, contributory negligence is a defense to actions under Article 2695, if it is shown that the tenant knew of the defective condition, that the premises could be safely used with the use of reasonable care, and that the tenant failed to exercise that standard of care. Carlysle v. Aetna Insurance Company, 248 So.2d 64 (La.App. 1st Cir. 1971). Mrs. Phillips’ own negligence is therefore a bar to her recovery under Article 2695.

We therefore hold that, under the undisputed facts of this case, plaintiffs are not entitled to recover as a matter of law.

The judgment appealed from is reversed and set aside, and there will be judgment herein in favor of defendants, dismissing plaintiffs’ suit. Plaintiffs will pay all costs both in this court and the court below.

REVERSED AND RENDERED.


text:
    Carl M. WECKEL v. LHHRA, CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS.
    No. 11592.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    As Amended on Denial of Rehearing Dec. 28, 1977.
    Writ Refused Feb. 10, 1978.

      Archie C. Tatford, Jr., New Orleans, for appellant, Carl M. Weckel.
    Walter J. Horrell, Baton Rouge, for ap-pellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Carl M. Weckel, appellant, appealed a decision of the Louisiana Civil Service Commission denying his appeal from his dismissal as Accountant IV with permanent status by the Louisiana Health and Human Resources Administration, Charity Hospital at New Orleans, Louisiana, appellee.

The appointing authority dismissed appellant in a letter written September 19, 1975. Eight allegations were ■ enumerated as revealing serious deficiencies in management in the Payroll Section and Accounts Payable Section of Charity Hospital. The appellant was responsible for both sections.

No person who has gained status in the classified state service shall be subjected to disciplinary action except for cause expressed in writing with the employee having the right of appeal to the Civil Service Commission, and the burden of proof shall be upon the appointing authority. Article 10, § 8(A), Louisiana Constitution of 1974.

At the outset we note the highly significant difference between the Louisiana Constitution of 1921 and the Louisiana Constitution of 1974 regarding the burden of proof in appeals of civil service employees. Article 14, § 15(N)(l)(a) of the 1921 Louisiana Constitution provides: “The burden of proof on appeal, as to the facts, shall be on the employee.” This is in direct opposition to the rule under which the case before us must be decided.

The sole issue is whether appointing authority carried the burden of proof that the appellant was dismissed for cause.

In its opinion the Civil Service Commission stated that the appellant was responsible for the Payroll Section and the Accounts Payable Section of the Accounting Department of the hospital and listed the following “deficiencies in the management and performance of these sections”:

“1. The required monthly bank reconciliation for the payroll account had not been performed since December, 1974.
“2. The hospital group insurance report had not been completed since May of 1975 and was three months in arrears.
“3. That appellant failed to timely compile and submit summary payroll information for the three payroll periods in June, 1975. The information was submitted one and one-half months late.
“4. That appellant failed to notify his superiors of problems within the payroll section in sufficient time to permit their orderly resolution; specifically, that appellant did not initiate a formal request for additional personnel.
“5. That appellant failed to reconcile group insurance premiums for-retired Charity Hospital employees.
“6. That approximately fifty percent (50%) of all Charity Hospital employees had incorrect payroll deductions for group insurance for one month or more due to appellant’s actions.
“7. That appellant’s inability to manage the Accounts Payable Section caused strained relations with the hospital’s vendors and led to more than one million dollars ($1,000,-000.00) being owed to vendors on overdue obligations. Further, that appellant’s files were in such a chaotic condition that information regarding these over-due obligations, some dating back nine years, had to be obtained from the vendors. That due to inaccurate information supplied by this section, Charity Hospital returned surplus funds to the State each year while overdue obligations existed.
“8. That many vendors sent the hospital copies of correspondence to the Accounts Payable Section that had not been responded to in a satisfactory fashion and that employees of appellant’s section were surly and uncooperative in dealing with certain vendors.” (Record, p. 25)

Our analysis of the eight “deficiencies in management and performance” lead us to believe that these items each referred to a lack of results which the hospital management failed to achieve in its operation. It is clear to us that Weckel, as an Accountant IV, was not a member of the top management echelon of the hospital, and the question becomes largely how much of these “deficiencies” may be properly imputed to him. As noted above, the new constitutional rule places the burden of proof as to the facts constituting cause for dismissal on the appointing authority.

Concerning the first item regarding the reconciliation of the payroll account, we are of the opinion that it was an unjustified allegation of a deficiency in management and performance. Appellant’s explanation was that it was not necessary to go through a batch of checks that match to a computer analysis when the computer analysis indicated there were no errors. As a supervisor in charge of the Payroll Section, such judgment would appear to come within the scope of his authority, absent specific instructions from a superior, which instructions are not shown in the record. There is testimony in the record to show that there had been a change in banks based on a decision made by higher authorities in the hospital administrative staff. The new bank did not render the same service as the prior bank, and the added work had to be done by the limited personnel assigned to Weckel’s supervision.

Regarding the “deficiency” items numbered two, three, five and six, we believe, in summary, that they were closely interrelated and were caused by the installation of a new computer system and a new data processing system. Charity Hospital is not the first institution in our era to experience problems resulting from the computer. As is true of other supervisors, Weckel was limited in his control over many of these events. There is evidence that during this period Weckel was conscientious and gave the hospital many hours of overtime, and our careful review of the voluminous record convinces us that it would be manifestly unfair to place the blame for these inadequacies on the appellant.

Item number four alleges that the appellant failed to initiate a formal request for additional personnel, but our review of the record causes us to believe that Weckel did all he could do to inform his superiors of his need for more workers in these sections, considering his status as an Accountant IV. We conclude that the communication methods between Weckel and his superiors were informal and that it would be grossly unfair to hold that he breached a duty to request more employees by the mere fact that he did not write a request for more personnel when there is evidence that he verbally made known the needs of his department.

Items seven and eight on the “deficiency” list involve the Accounts Payable Section. In its opinion the Civil Service Commission found several facts regarding the problems in this section. First, it found that it was the policy of the section not to pay an invoice or bill if the three items required by State law were not present for payment. We can find no fault with this policy of the section and deem it to be proper. Second, it found that in excess of one million dollars in past due accounts was outstanding in the spring of 1975. While this sum is impressive, it should be placed in the perspective of the total accounts payable of over $13,000,000 annually and further to appreciate the fact that many of those unpaid accounts were due to a lack of the three necessary documents being in the hands of the section as well as other technical reasons. Third, there were cases of accounts payable being past due even when all three documents necessary for payment were present. We consider this allegation vague in the absence of specific findings, and lacking substantiation in the record, we reject it for its overbreadth. Fourth, the Accounts Payable Section did make efforts to secure missing items, specifically and most important, delivery receipts from the warehouse, but the opinion adds:

“Employees of Mr. Weckel’s section would go to the warehouse to seek delivery receipts and some would go to different sections to see if an item had been delivered. Here the procedure and supervision, however broke down. By appellant’s own admission, from this point forward, nobody did anything but wait for the missing document. Apparently, until the vendor got upset and initiated some action, nothing more was done to resolve the problem or satisfy the obligation.” (Record, p. 29)

Based upon the testimony in the record, we are of the opinion that the Accounts Payable Section did more than could reasonably be expected of it under the structural organization as we understand it. The duty of forwarding the delivery receipts was not the responsibility of the Accounts Payable Section, and when the section failed to receive them, the blame for it should properly have been placed elsewhere within the hospital administration. Also, concerning the allegation that some of the accounts dated back nine years and information had to be supplied by the vendors, we are compelled to note that Weckel did not become an Accountant IV until June of 1973. Furthermore, we doubt that it was necessary to write the vendors for information and regard this course of action as an expedient decision of a special “Task Force” sent to study the hospital’s administrative problems in the spring of 1975.

As to the final “deficiency,” we believe that counsel for appellant captured the essence of this matter when he wrote in his brief:

“ * * * The Commission preferred to overlook the testimony of the Appointing Authority’s own witnesses, vendors of Charity, * * * who testified that neither Appellant nor his employees were surly at any time to them. They did testify that they were uncooperative, but their definition of uncooperative in all instances was the fact that they were not being paid. Uncooperative = non payment — this was the gist of the testimony of these vendors. As to why these vendors were not paid, their own testimony indicated that they overshipped goods, undershipped goods, sent goods not conforming to purchase orders among other deficiencies. * * * ” (p. 10)

The testimony is clear and convincing that for a period in 1975 preceding the dismissal of appellant there was a convergence of multiple situations such as a new bank combined with the installation of a new computer system and a new data processing system which placed inordinate stress upon the personnel resources in the Payroll and Accounts Payable Sections.

Our conclusion is apparently recognized by the Civil Service Commission because its opinion is somewhat apologetic in attributing these deficiencies to appellant. We quote: “While problems of this magnitude cannot possibly be pinpointed to one person’s mistakes alone * * “While the department head cannot be charged with all of the individual errors * * “Appellant and his witnesses proved that he was a hard worker; and, except for minor infractions, Charity does not accuse him of not trying hard. Management, however, is a subjective matter that is evaluated by the work product and not by hard work and that might be misdirected.” (Emphasis ours)

Our over-all evaluation of the alleged “deficiencies” leads us to believe that a desirable standard of results was lacking at Charity. Although this lack of results was reflected in the Payroll and Accounts Payable Sections, it is beyond our imagination to believe that it originated solely from the fault of one Accountant IV who the record revealed had limited executive discretion and no direct means of supplementing his work force. It is suggested that the cause lay equally elsewhere. To hold a classified civil service supervisory employee to standards of performance without allowance for corresponding decisional authority and personnel resources does not meet the legal test “for cause.”

Therefore, the decision of the Louisiana Civil Service Commission is reversed, and appellant is restored to his civil service classification with full salary from date of dismissal and with retention of all ancillary benefits and status.

Appellee is taxed with all costs of these proceedings as may legally be assessed against the State of Louisiana.

REVERSED AND RENDERED.


text:
    Robert CRITNEY v. GOODYEAR TIRE & RUBBER COMPANY.
    No. 11596.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.

      William A. Norfolk of Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-appellant.
    Patrick W. Pendley of Freeman & Pend-ley, Ltd., Plaquemine, for plaintiff-appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Goodyear Tire & Rubber Company, defendant-appellant, is appealing a judgment awarding Robert Critney, plaintiff-appellee, $1,500.00 in damages and permanently enjoining the company, its officers, agents and employees from causing or permitting any polyvinyl chloride or other substance to escape onto plaintiff’s property. In his brief to this Court, plaintiff has requested that the award of damages be increased to not less than $7,500.00.

In his petition to the trial court, plaintiff asked for $50,000 in damages and an injunction to enjoin the operation of the plant and to remove the plant. Plaintiff’s residence is separated from the Goodyear property by a ditch. He testified that between February, 1976, and March, 1977, polyvinyl chloride powder fell on his property causing damage to the property which had been his home for over thirteen years.

In addition to plaintiff’s testimony and photographic exhibits showing a powdery substance on his property, Mrs. Critney and three neighbors testified that polyvinyl chloride particulate matter from the Goodyear plant fell on the Goodyear neighboring property with irregular but numerous frequency, at some times covering portions of the ground to a depth of an inch to an inch and a half and permeating the air similar to a thick fog to a density that oncoming automobiles could not be seen on the highway and that “it just comes all in the house, it gets over everything, all in the cars, inside the house, in the bed if the window is up.” The evidence indicates that the events had been recurring for years with an increasing frequency during the year and a half preceding trial and reached the point that one neighbor across the street from plaintiff cleaned his residence porch daily to remove the “white fine stuff” by hosing and sweeping.

The defendant offered the testimony of its plant manager and personnel manager, who testified that their automobiles parked at the plant had suffered de minimis damage from the polyvinyl chloride powder. Evidently, the trial judge gave more weight to the testimony of witnesses who were residents or nearby residents of the affected property than he did to defendant’s employees who derive their livelihood from the defendant and keep their automobiles at this plantsite during their working hours.

Goodyear, as defendant-appellant, assigned three errors by the trial court:

(1) “failing to find that if an encroachment was being made by Goodyear onto the property of Critney, such was an ‘inconvenience’ which, pursuant to RCC 668-669 was permitted (Article 668) or as to which it was damnum absque injuria.”
(2) “granted an injunction which will prohibit defendant’s lawful activities, absent a showing that such activities will cause irreparable injury.”
(3) “awarding the sum of $1,500.00 in damages to plaintiff.”

In considering the first error, we find helpful the words of Professor A. N. Yiannopoulos, Civil Responsibility in the Framework of Vicinage: Articles 667-69 and 2815 of the Civil Code, 48 Tul.L.Rev. 204-206 (1974):

“Articles 667-69 form a unit in the Louisiana Civil Code of 1870, and, for a proper understanding, they must be read together. Article 667 prohibits works which cause damage or deprive neighbors of the enjoyment of their property; article 668 permits works that merely cause some inconvenience; and article 669 indicates that, in the absence of a conventional servitude, inconveniences resulting from the emission of smoke or odors may be tolerated or suppressed, depending on police regulations and local customs. Admittedly, lines of demarcation are not1 clearly drawn among works that cause damage or deprive a neighbor of his enjoyment under article 667 and inconveniences that fall short of that test and must be tolerated under article 668. Further, no clear line of demarcation is drawn between inconveniences that must be tolerated under article 668 and those that may or may not be tolerated under article 669.
“Apparently, the redactors of the Civil Code wished to establish the following principles. No one may use his property so as to cause damage to another or to interfere substantially with the enjoyment of another’s property (article 667). Landowners must necessarily be exposed to some inconveniences arising from the normal exercise of the right of ownership by a neighbor (article 668). But excessive inconveniences, such as those caused by the emission of industrial smoke or odors, need not be tolerated in the absence of a conventional servitude; whether an inconvenience is excessive or not is to be determined in the light of police regulations and local customs.
“According to civilian analysis, the right of ownership has an affirmative as well as a negative side. * * * The affirmative side is the owner’s right to do with his property whatever he pleases; the negative side is the owner’s right to exclude interferences with his property. These two sides of the right of ownership are implicit in articles 488 and 491 of the Louisiana Civil Code of 1870. * * * It is apparent that article 667 imposes a limitation on the affirmative side of the right of ownership in immovable property in favor of neighboring landowners. Although, in principle, a landowner may use and enjoy his property as he sees fit, he may not exercise his right in such a way as to cause damage to neighbors. Article 668 imposes a limitation on the negative side of a neighbor’s right of ownership in immovable property. Although, in principle, the neighbor may exclude any interference with his property, he is bound to tolerate certain inconveniences resulting from the lawful use of another neighbor’s property. By imposing limitations on the right of ownership the two articles maximize enjoyment of property in society. If a landowner had unlimited freedom in the use of his property, other landowners could not possibly have the same freedom. Limitations on the use of property thus ensure maximum enjoyment of property by all persons.”

When we apply the unrefuted testimony of the witnesses as previously recited to LSA-C.C. arts. 668-669, we are compelled to agree that the trial judge was correct in concluding that the encroachment by Goodyear upon the property of plaintiff was, indeed, more than an “inconvenience” and could not possibly be dismissed as being merely damnum absque injuria.

As to the second assignment of error, we are convinced that the trial court was correct in ordering the injunction. Irreparable injury includes an injury, whether great or small, which ought not to be submitted to, and which, because it is so large or so small or is of such constant and frequent occurrence, cannot receive reasonable redress in a court of law. Clearly, to permit the continued encroachment on the property of plaintiff with polyvinyl chloride by Goodyear would be to permit irreparable injury which should not be tolerated. The injunction by the trial court is obviously designed to protect plaintiff in the future and is an appropriate remedy deeply embedded in our jurisprudence since the landmark case of McGee v. Yazoo & M. V. R. Co., 206 La. 121, 19 So.2d 21 (1944).

The third assignment of error objects to the $1,500.00 award, but we can find no error in this sum for past injury suffered by plaintiff as a neighboring landowner. Based on a careful review of the testimony, we can find no abuse of discretion in arriving at this quantum.

Additionally, regarding the quantum, this Court is precluded from considering an increase in the award to plaintiff, inasmuch as plaintiff did not file an answer to appeal timely as provided in LSA-C.C.P. art. 2133.

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed, at the cost of defendant-appellant.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    Portia Brown JACKSON et al. v. The EAST BATON ROUGE PARISH INDIGENT DEFENDER’S BOARD et al.
    No. 11599.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.
    Robert C. Williams, Baton Rouge, of counsel for plaintiff-appellant, Portia Brown Jackson, et al.

      Samuel R. Cicero, Baton Rouge, of counsel for defendant-appellee, The East Baton Rouge Parish Indigent Defender’s Board, et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This case involves the right of a governmental employer to dismiss an unclassified employee without cause.

Plaintiff, Hazel Smith Williams, was employed as a secretary and plaintiff, Portia Brown Jackson, was employed as a secretary-bookkeeper, for the East Baton Rouge Parish Indigent Defender’s Board. Plaintiffs alleged that they were discharged on January 3, 1977, for no cause shown, and they seek reinstatement to their former positions of employment as well as back pay and allowances, including reasonable attorney fees and damages. The defendants, The East Baton Rouge Parish Indigent Defender’s Board and its director, Alton Moran, filed an exception of no cause of action which was sustained by the Trial Judge dismissing plaintiffs’ suit.

In their appeal, plaintiffs contend that the Trial Judge erred in sustaining the exception as well as in ruling that the Board as a governmental entity had “unbridled discretion” to terminate employment at will and without cause.

LSA-C.C. art. 2747 provides:

“A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.”

Absent any specific statutory requirement or contractual agreement regulating the employment relationship of the parties, termination is at the will of either party, and in the case of a governmental entity, termination is at the will of the appointing officer, provided no restraints are placed on his power. Hamilton v. Louisiana Health and Human Resources Administration, 341 So.2d 1190, (La.App. 1st Cir. 1976), writ refused, 344 So.2d 4 (1977).

Appellants hinge their argument on a denial of due process in not requiring the governmental entity to show a just cause for dismissal and to allow a hearing on the matter. They contend that their employment position is a property right protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

For there to be protection under the Fourteenth Amendment there must first be a property right or interest protectable by the Due Process Clause, however, property rights and interests are not created in the Constitution of the United States but stem from independent sources such as state laws, rules, or understandings which secure certain benefits and support claims of entitlement thereto. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

Appellants fail to allege any legislative act, rule or any understanding between themselves and their employer which creates a property interest protectable by the Fourteenth Amendment. A mere subjective expectancy in continued employment does not in itself create a property interest which would be protected by procedural due process. Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

In addition, appellants failed to allege that the reason for their dismissal was the exercise by them of any rights protected by the United States and/or Louisiana Constitutions.

The Louisiana Supreme Court has held that the pursuit of employment is a property right, West v. Town of Winnsboro, 252 La. 605, 211 So.2d 665 (1967) and Banjavich v. Louisiana Licensing Board for Marine Divers, 237 La. 467, 111 So.2d 505 (1959), however, there is no case holding that a specific employment position is a property right of that employee, absent a showing of any contractual agreement or a legislative act or rule.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed; all costs of this appeal to be paid by plaintiffs-appellants.

AFFIRMED.


text:
    Robert A. RIVERE v. THUNDERBIRD, INC., et al.
    No. 11610.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.
    Risley C. Triche, Napoleonville, of counsel for plaintiff-appellee, Robert A. Rivere.
    Michael Harson, Lafayette, of counsel for defendant-appellant, Thunderbird, Inc., and Market Ins. Co.

      Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

The suit before us arises from an accident which occurred when the plaintiff, Robert A. Rivere, slid head-first down a slide at Thunderbird Beach, located near Baton Rouge, Louisiana. The plaintiff-appellee was a patron at the Beach at the time of the accident. In the suit before us, on appeal, the defendants, Thunderbird, Inc., and its liability insurer, Market Insurance Company, are appealing the judgment of the trial court against them and in favor of the plaintiff-appellee in the amount of $5,000.00 in general damages, together with $3,672.89 in special damages. We reverse.

The record reveals that the plaintiff-ap-pellee, along with members of his family and his brother’s family, picnicked at the Beach, an amusement park operated by Thunderbird, Inc., on October 4, 1974. One of the amusement devices was the slide on which Rivere was injured. This slide was arranged so that the edge (end of the slide) protruded over a man-made lake which was used for swimming by the patrons of the Beach. The slide was about 30 feet in height and had approximately 119 feet of sliding surface from top to bottom, which surface had water running over it continuously and purposefully, in that it thereby increased the sliders’ speed. The depth of the water was about three feet on the date of the accident.

The plaintiff-appellee, as well as other members of his party, had slid down the slide several times prior to the accident. Rivere described the slide which resulted in his injury as a head-first one which terminated in his hitting the bottom of the lake, sticking in the sand up to his ears. He struck the bottom of the lake with such force that he was stunned, necessitating a rescue which was effected by his nephew. The members of his party who observed the accident corroborated Rivere’s version of the accident. The defendants rested their case without putting on any testimony.

The duty of the operator of an amusement park to his patron is that of ordinary care; he impliedly represents that he has used reasonable care in inspecting and maintaining the amusement devices and that they are reasonably safe for the purposes intended. See Lefort v. Ponchatoula Beach Development Corporation, 292 So.2d 354 (La.App. 1st Cir. 1974).

The trial judge did not find the slide to be inherently dangerous. He was of the opinion that the height of the slide and the depth of the water created a hazardous condition and thát what made it particularly hazardous was the lack of instruction with regard to how one should enter the water. Elsewhere in his opinion he seemingly contradicts this when he states that the speed with which one descends the slide is such that one does not have time to position his body in order to glide over the top of the water as opposed to being projected downward. Although some of plaintiff’s kinfolks who used the slide that day so testified, the statement cannot possibly be true, for otherwise the risk of injury would be so great that surely some of them would have suffered the same fate.

The trial judge was absolutely correct when he surmised how plaintiff suffered injury when he stated:

“* * * He must have hit it with his head down or his arms down or his body bent just below the shoulders in some fashion as to cause his body to go downward rather than outward.” (Record, p. 233)

We certainly agree with his observation but disagree that plaintiff could have had no control over his body as he exited the slide. Its constant use by others without injury and the absence of evidence as to its inherently dangerous nature (designed so as to propel its users downward) support this finding.

Accordingly, if the trial court did not find the slide to be inherently dangerous, then in order to prevail in the case, plaintiff would necessarily be required to prove some negligence on the part of the defendant by a preponderance of the evidence.

At this point it is pertinent to note that recurring throughout the jurisprudence of this state is the consistent rule that a proprietor of a place of public amusement is not an insurer of the safety of his patrons. Givens v. De Soto Bldg. Co., 156 La. 377, 100 So. 534 (1924); Cassanova v. Paramount-Richards Theatres, 204 La. 813, 16 So.2d 444 (1943); Gilliam v. Serrano, 162 So.2d 32 (La.App. 1st Cir. 1964), writ refused, 246 La. 77, 163 So.2d 356; Spiers v. Lake Shore Enterprises, Inc., 210 So.2d 90 (La.App. 1st Cir. 1968).

Thus, if the defendant is not an insurer or there is no finding of strict liability, then unquestionably the burden is on plaintiff to prove negligence. As we evaluate the matter, the defendant had control over three factors which the trial judge touched upon in his oral reasons, to-wit: (1) the slide itself, (2) the water, and (3) the notice to patrons. An examination of these factors as they relate to the plaintiff follows.

As to the slide, we agree with the trial judge that the slide was not inherently dangerous.

Concerning the water, we believe that the testimony of plaintiff provides the most significant facts in determining if defendant’s control over the water could be the basis of negligence. Plaintiff stated that prior to his injury he slid down the slide four or five times head first, that he had not hit the bottom with his head, that all day long he had observed other patrons negotiating the slide, and that he was aware the water was approximately three feet deep. With plaintiff having the benefit of his own experience with the slide, combined with his observation of others safely using the slide and his knowledge of the depth of the water, we fail to find any basis for the defendant’s negligence concerning the water factor insofar as it affected the plaintiff.

In regard to notice of patrons, or as the trial judge states “lack of instruction,” we are of the opinion that plaintiff needed no instructions. As pointed out above, he had the benefit of his own experience and observations, and we are even more impressed that he had sufficient knowledge to enter the water without injuring himself. When asked, in his diving experience, how he would dive if he wanted to dive from a particular point and stay as close to the top of the water as possible, he replied that he would dive on an angle “not to go too deep.” While the trial judge does not specify the nature of the instructions which he believed should have been given, he stated:

“* * * I think that what makes this particularly dangerous is the lack of instruction with regard to how one should enter the water. * * *” (Record, p. 232)

If this had been plaintiff’s first dive, we would agree, but with the plaintiff’s knowledge and experience, we cannot conceive of any instruction which would include information that he did not already have.

Finally, we observe that there is some element of risk in every sport. The plaintiff was thirty-one years old, had used the slide before and seen its use by others. He was familiar with the depth of the water and knew or should have known that if he entered the water at a downward angle he would certainly injure himself. The slide was not designed to prevent someone from projecting himself downward after one left the slide and entered the water, so there was definitely a risk of injury if one did not enter the water properly. The plaintiff had sufficient knowledge and experience to be charged with a lack of judgment if he did not enter the water in a manner to prevent striking the bottom. We conclude that plaintiff injured himself through his own fault and should not be allowed to recover.

For the above and foregoing reasons, the judgment of the trial court is reversed and set aside, and judgment is rendered herein dismissing plaintiff’s suit at plaintiff’s costs.

REVERSED AND RENDERED.

      . The suit was dismissed, with prejudice, against defendants, Bruce A. Facundus, Jr., Bruce A. Facundus, Sr., John L. Facundus, and the partnership, Thunderbird Beach, composed of Bruce A. Facundus, Jr., Bruce A. Facundus, Sr., and John L. Facundus, who had been joined as alternative party defendants.


text:
    Mrs. James E. KELLY, Jr., Individually and as Curatrix of James E. Kelly, Jr., and the minors, James E. Kelly, III and Tracy Kelly v. UNITED STATES FIDELITY & GUARANTY COMPANY, Vulcan Materials Company, Gary Milhorne, Al Boudreaux, Jim Sheets, James D. Avants, Norman Neal, M. J. Mott, J. Lockwood, Jean Crook, Ted J. Bagwell & K. Babin.
    No. 11614.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Granted Feb. 17, 1978.
    Peter T. Dazzio, Baton Rouge, of counsel for plaintiff-appellant Mrs. James E. Kelly, Jr., Ind., etc. et al.
    Daniel R. Atkinson, Baton Rouge, and Calvin E. Hardin, Baton Rouge, of counsel for defendant-appellee U. S. Fidelity & Guaranty Company, et al.
    Margaret T. Lane, Baton Rouge, for defendant-appellee James Avants.

      Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto by plaintiff, Mrs. James E. Kelly, Jr., both individually and in her capacity as the curatrix of her interdicted husband, James E. Kelly, Jr., as well as administratrix of the estate of her minor children, James E. Kelly, III and Tracy Kelly. Named defendants are Vulcan Materials Company, James Cheeks (sued as Jim Sheets), A1 Boudreaux, Gary Malehorne (sued as Gary Milhorne), Kay Babin (sued as K. Babin), George Valeos (sued as George Slacos), Jean Crook, James Avants, Norman Neal, Ted J. Bagwell, M. J. Mott, Harold J. Lockwood (sued as J. Lockwood), and United States Fidelity & Guaranty Company. From a judgment granting a summary judgment holding that Vulcan Materials Company was the statutory employer of James E. Kelly, Jr., and dismissing this tort action as to Vulcan, as well as a judgment granting a motion to strike filed by all defendants as to the allegations by plaintiff, Mrs. Kelly individually and as administratrix of the estates of her minor children, as to their loss because of injuries received by James E. Kelly, Jr., all plaintiffs have appealed.

Vulcan Materials Company owns and operates a chemical plant at Geismar, Louisiana. As part of its maintenance program, it entered into a contract with Bagwell Coating, Inc. to do painting and resurfacing work. Bagwell was described by an employee of Vulcan as being a coating contractor specializing in acid proof cement type coatings. Vulcan also contracted with another company for its other regular maintenance work. The only maintenance personnel employed by Vulcan were approximately 12 instrument electricians.

James E. Kelly, Jr. was an employee of Bagwell, and was at the time of the accident, March 10, 1975, sandblasting the interior glass lining of a tank so as to expose a section of metal to allow repair and relining with glass. Kelly as well as other employees of Bagwell were directed by supervisory employees of Vulcan as to which jobs needed to be done. Only occasionally would supervisory personnel of Bagwell be present at the Vulcan plant. Because of the corrosive nature of some of the chemicals manufactured by Vulcan, it was necessary to constantly refinish metal surfaces, and thus, Bagwell employees were regularly working at the Vulcan plant. Kelly inhaled pure nitrogen and suffered permanent brain damage.

In suing, Mrs. Kelly individually sought damages for being “permanently deprived of support, society and companionship of her husband” and as the administratrix of her minor children sought damages for their having been “permanently deprived of the. support, guidance, and companionship of their father.”

Vulcan filed a motion for summary judgment contending it was the statutory employer of Kelly, thus his remedy was exclusively in workmen’s compensation. All defendants filed motions to strike the allegations of Mrs. Kelly and her children wherein they sought damages because of loss of support, society, companionship and guidance.

In appealing the appellants contend that the Trial Court erred (1) in holding that the activity James E. Kelly, Jr., was engaged in was part of the regular trade, business, or occupation of Vulcan Materials Company since specialized activity was involved and not ordinary maintenance, (2) in stating that there was no genuine issue of material fact and that Vulcan Materials Company was entitled to judgment as a matter of law, (3) in holding that the motion to strike was timely filed in violation of Article 964 of the Code of Civil Procedure, and (4) in treating the motion to strike as an exception of no right or cause of action and further in holding that the wife and children had no right or cause of action for recovery of damages to the interdicted husband and father.

ERRORS NOS. 1 & 2

Appellants strenuously argue that the repair and maintenance work being performed by Bagwell, and in particular, Kelly, was not the ordinary kind of maintenance situation. Maintenance performed by Bag-well was of a highly specialized nature. In deposition it is brought out by Vulcan’s own supervisory personnel that it did not have the capacity to do this kind of work, that it had neither painters nor sandblasters on the payroll.

Certainly, the determination of whether a particular company is or is not a statutory employer must be handled on a case by case basis. Unfortunately, we can find no cases of a closely similar nature, nor have any been cited to us. We note, however, a tendency in the cases to distinguish between new or additional construction or reconstruction and repair and maintenance work regardless of how specialized, Reeves v. Louisiana and Arkansas Railway Company, 282 So.2d 503 (La.1973); Jones v. Francis Romero, Inc., 345 So.2d 1286 (La.App. 3rd Cir. 1977).

Admittedly maintenance and repair work in a chemical plant is essential to the continued efficient operation of the plant, and thus, we conclude as did the Trial Judge that such work falls within the regular trade, business or occupation of Vulcan.

After a thorough review of the record in conjunction with the motion for summary judgment, we do not find any genuine issue of material fact. The facts are not in dispute. Appellants in citing Cain v. Witco Chemical Corp., 341 So.2d 1220 (La.App. 1st Cir. 1977) argue that the question of whether or not work is part of the regular trade, business or occupation is a fact question which should go to the jury. However, on reading Cain closely, we do not find where this Court so held. We know of no prohibition in LSA-C.C.P. arts. 966 et seq., so as to prevent the Trial Judge from granting a summary judgment where there are no genuine issues of material fact, and mover is entitled to judgment as a matter of law, simply because a jury trial has been asked for as in this case.

ERROR NO. 3

LSA-C.C.P. art. 964 provides:

“The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter. The motion of a party shall be filed within ten days after service of the pleading upon mover, except that a defendant may move to strike any matter from the petition at any time within fifteen days of the service.”

The defendants were served at various times during March of 1976, and the motions to strike were filed in July of 1976. Unquestionably, the motions were untimely,, but we find no error on the part of the Trial Judge inasmuch as LSA-C.C.P. art. 964 allows the court “on its own motion” to strike. The Trial Judge, rather than treating the objection as a motion to strike, considered same as the peremptory exception of no right or no cause of action. We find no error. LSA-C.C.P. art. 927.

ERROR NO. 4

The appellants lastly argue that the Trial Judge was in error in dismissing the suit of Mrs. Kelly individually and as ad-ministratrix for the estate of her minor children for the loss of support, society, companionship and guidance because of the permanent brain damage received by their husband and father. Quite eloquently and meritoriously these appellants argue to this Court that they have suffered a loss just as seriously and traumatically as if Mr. Kelly had died. We know not the seriousness of the injuries Mr. Kelly received nor their full and lasting effect on the remaining members of his family but be that as it may, we must conclude that there was no error on the part of the Trial Judge in dismissing their portions of this suit. Hickman v. Parish of East Baton Rouge, 314 So.2d 486 (La.App. 1st Cir. 1975), writ refused, 318 So.2d 59 (1975).

Therefore, for the above and foregoing reasons the judgment of the Trial Court is affirmed; all costs of this appeal are to be paid by appellants.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Harry E. ROTH v. Katherine Gaidry ROTH.
    No. 11628.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.
    Eddie N. Pullaro, Houma, for plaintiff and appellee.
    Sidney Sundbery, Houma, for defendant and appellant.
    Edward Gaidry, Houma, for defendant and appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Harry E. Roth filed this rule against his ex-wife, Katherine Gaidry Roth, to terminate alimony and decrease child support. The trial court rendered judgment reducing the combined alimony and child support award from $850.00 per month to $600.00 per month. Mrs. Roth has appealed.

The Roths were divorced on September 4, 1975. The divorce judgment provided that Mr. Roth pay the sum of $850.00 per month as alimony and child support. This award was subsequently allocated by consent of the parties as $450.00 per month alimony and $400.00 per month child support.

On February 25, 1977, Mr. Roth filed the present rule to terminate alimony and decrease child support based on both an increase in his expenses and an increase in Mrs. Roth’s assets.

The evidence presented at the hearing on the rule, as summarized by the trial judge in his Narrative of Facts consisted solely of the testimony of Mrs. Roth. Her testimony revealed that her $285.00 yearly income had not increased since the rendition of the divorce judgment.

However, the trial judge noted:

“At that time she and her two minor children were residing in a home in Ellen-dale Subdivision. This home had been acquired by her and plaintiff-in-rule during their marriage as community property. Subsequent to the rendition of the last judgment of alimony and child support in this matter and prior to the execution of the property settlement, this home was sold as part of the parties’ efforts to settle their community property regime. The sale of the home produced cash equity in excess of $30,000. which sum formed substantially all of the cash divided in the property settlement. She received the $21,109.07 as her share of the equity in the home. She received approximately $10,000. more than plaintiff-in-rule from the equity in the home because at the time the property was originally purchased, she put up $10,000. from her separate and paraphernal estate. Following the community property settlement she purchased a home for herself and her children in Lisa Park Subdivision. This home was not as large or as fancy as the prior home in Ellendale Subdivision, however totally adequate for defendant-in-rule and her children. In the purchase of the home in Lisa Park Subdivision, she paid $15,000. cash equity and assumed the balance owed on a mortgage on the property. She later arranged a loan with Terrebonne Bank & Trust Company to pay off the existing mortgage and create a new mortgage on the property in order to reduce her monthly mortgage notes. In connection with this loan she put up an additional $5,000, however she also testified that the monthly note was now higher than that which she had previously assumed and the additional down payment on the new loan with Terrebonne Bank & Trust Company was required along with the increased monthly note so that the home could be paid off in a shorter period of time. She has approximately $1,000. in cash at the present time.”

The trial court found, based on this evidence, that there had been a change in the wife’s circumstances which warranted a reduction in the amount of alimony.

Our review of the record and the jurisprudence reveals that the trial court erred in determining a change of circumstances on the wife’s part.

At the time of the divorce, Mrs. Roth owned an undivided one-half interest in the community, which consisted primarily of the family home in which Mrs. Roth and the children resided. This interest was subsequently realized in the form of a cash community property settlement, which Mrs. Roth used to purchase the house in which she and the children now reside.

While we recognize that Mrs. Roth now has in full ownership assets with value in excess of $20,000.00, we find that the means available to Mrs. Roth for her maintenance have not increased since the divorce. Compare Loe v. Loe, 131 So.2d 106 (La.App. 2nd Cir. 1961). The law is well settled that a wife is not required to sell the home in which she and the children live and use the proceeds from the sale in lieu of receiving alimony from her former husband. Phillpott v. Phillpott, 321 So.2d 797 (La.App. 4th Cir. 1975); Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir. 1975).

We find no other evidence in the record to support a reduction of alimony.

For the foregoing reasons, the judgment of the trial court is reversed; and the original judgment herein is reinstated. All costs are to be paid by plaintiff-appellee.

REVERSED AND RENDERED.


text:
    In the Matter of the Succession of Beulah E. MOORE.
    No. 11629.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 17, 1978.

      Johnnie A. Jones, Baton Rouge, of counsel, for plaintiff-appellant, Hazel H. Young, et al.
    Vanue B. Lacour, Baton Rouge, of counsel, for defendant-appellee, Girardeau A. Spann.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This is an appeal from a judgment sus,-taining an exception of no cause of action and dismissing plaintiffs’ suit. We affirm.

Plaintiffs are the children of Mrs. Beatrice Hainsworth and Mrs. Fannie Matthews, two named legatees of Beulah E. Moore, the decedent-testatrix. Both Mrs. Hainsworth and Mrs. Matthews predeceased the testatrix.

Plaintiffs instituted this suit for a declaratory judgment to be recognized as the owners by representation of the bequests made by the testatrix to their ancestors. The trial court sustained an exception of no cause of action filed by the executor of the testatrix’s estate.

The olographic will of the testatrix states, in pertinent part:

. “I direct that said properties (8776 and lot) be sold at private sale and the proceeds distributed as follows: one half to my deceased husband’s (J. B. Moore’s) sisters: Mrs. Beatrice Hainesworth (sic) and Mrs. Fannie Matthews, share and share alike . . ”

The will contains no provision transmitting the bequests in the event the named legatees should die before the testatrix.

In this instance, the law and jurisprudence are clear that a legacy becomes without effect if the legatee predeceases the testatrix. LSA-C.C. art. 1697. The lapse of a legacy due to the prior death of the legatee causes the legacy to fall into the residuum of the testatrix’s estate and does not go to the heirs of the predeceased legatee by representation or otherwise. LSA-C.C. art. 1709. See, Succession of Higgins, 275 So.2d 447 (La.App. 4th Cir. 1973).

Plaintiffs therefore have no cause of action to recover the lapsed legacies.

Similarly, we find that plaintiffs have no legal basis upon which to seek a reconstruction of the testatrix’s will, as there is no ambiguity in the wording of the will. LSA-C.C. art. 1712.

For the reasons assigned, the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.


text:
    Danny M. GUNSTREAM v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, Through LICENSE CONTROL AND DRIVER IMPROVEMENT DIVISION.
    No. 11632.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.

    Norman W. Ershler, Baton Rouge, of counsel, for plaintiff-appellant, Danny M. Gunstream.
    Foye L. Lowe, Jr., Baton Rouge, of counsel, for defendants, State of Louisiana, et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Danny M. Gunstream appeals a judgment of the district court which rejected his prayer for an injunction and upheld the suspension of his drivers license by the Department of Public Safety pursuant to LSA-R.S. 32:661 et seq.

FACTS

At approximately 3:15 A.M. on January 24, 1976, plaintiff was arrested for D.W.I. by State Police Trooper Gary S. White. He was taken by Officer White to the police station in Bossier City, where, he was requested to take a chemical test for the purpose of determining the alcoholic content of his blood. He was advised of his constitutional rights and informed of the consequences of a refusal to take the test. He refused to take the test and no test was administered.

On March 25, 1976, plaintiff was notified that his drivers license was being suspended for a period of six months in accordance with LSA-R.S. 32:667 because of his refusal to take the test on the night of his arrest.

A subsequent administrative hearing, held at plaintiff’s request, affirmed the suspension order.

On November 12,1976, plaintiff filed this suit to enjoin the Department from suspending his license and to review the administrative order. The case is presently before us as a result of an adverse decision below.

LAW

Plaintiff argues that the suspension of his license is- invalid because:

(1) the statutes, LSA-R.S. 32-661 et seq and particularly LSA-R.S. 32:667, as applied to plaintiff in the present circumstances, are unconstitutional; and
(2) the requirement of the statutes, that the suspension be based on a sworn statement of the police officer attesting the refusal to take the test, has not been satisfied.

Initially, plaintiff contends that LSA-R.S. 32-661 et seq are unconstitutional because these statutes, as applied to plaintiff, deny him substantive due process. In support of this contention, plaintiff argues that the statutes’ only purpose is to gather evidence to be used in a D.W.I. prosecution. He further argues that this State interest is absent in the instant case because he pleaded guilty to the D.W.I. charge prior to the suspension of his license.

In Harrison v. State, Dept. of Public Safety, Driv. Lic. Div., 298 So.2d 312 (La.App. 4th Cir. 1974), writ denied, 300 So.2d 840 (La.1974), it was held that LSA-R.S. 32:661 et seq do not violate due process guarantees and are not unconstitutionally overbroad. The court also noted that the State’s interest in administering the test is not solely the gathering of evidence for criminal prosecutions. We agree.

The rule with regard to such proceedings for suspension of a license for refusal to submit to a chemical test is that such proceedings are corollary to the licensing statute, being civil in nature, and are unaffected by the fact of the commencement of a criminal prosecution for D.W.I. or by the result of such prosecution. Whitaker v. State, Dept. of Public Safety, Driv. Lic. Div., 264 So.2d 725 (La.App. 1st Cir. 1972), writ vacated, 278 So.2d 503 (La.1973). The suspension proceedings under the statute are mandatory upon refusal to take the test. LSA-R.S. 32:667.

Accordingly, we find that plaintiff’s guilty plea to the D.W.I. charge is wholly unrelated to and does not prevent the suspension of his license for refusing to take the chemical test.

We find that plaintiff’s first contention is without merit and that the statutes are not unconstitutional.

Secondly, plaintiff argues that the police officer did not submit a “sworn” report and therefore the suspension is invalid relying on Neely v. State, Dept. of Public Safety, Driv. Lic. Div., 308 So.2d 880 (La.App. 2nd Cir. 1975).

However, the evidence in the present case reveals that the officer’s report was in fact a sworn report and therefore Neely is inapplicable.

The notary, before whom the report was executed, testified unequivocally that he never notarized a report unless the officer appeared before him and either signed the form at that time or affirmed the signature on the form if it had previously been signed. Officer White testified that he personally brought the report to the notary for it to be notarized, but that he could not remember whether he signed the report in the notary’s presence.

We find that, albeit Officer White may have signed the report outside the presence of the notary, when he appeared before the notary and affirmed his signature on the report, he consciously took on himself the obligation of an oath. State v. Snyder, 304 So.2d 334 (La.1974). Accordingly the report was a “sworn” report within the terms of LSA-R.S. 32:661 et seq.

For the foregoing reasons, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


author: PONDER, Judge. SUMMERS, J.,

text:
    GREATER BATON ROUGE AIRPORT DISTRICT et al. v. Mrs. Florence Hobgood HAYS et al.
    No. 11634.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1977.
    Rehearing Denied Dec. 28, 1977.
    Writ Refused Feb. 10, 1978.
    Joseph F. Keogh, Parish Atty., Baton Rouge, of counsel, for plaintiffs-appellees Greater Baton Rouge Airport District et al.
    Ashton L. Stewart, Baton Rouge, of counsel, for defendants-appellants Mrs. Florence Hobgood Hays et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.

      . La., 341 So.2d 403 (1977).

   PONDER, Judge.

Defendants appealed from a judgment denying interest on an expropriation award prior to the date of judgment.

The issue is the effect of concurring reasons given in the denial of a writ of certio-rari or review. We affirm.

In October, 1972, plaintiff by agreement with the defendants entered on defendants’ land to cut some trees in line with the runway at the Greater Baton Rouge Airport. In December, 1973, plaintiff filed an expropriation suit for an avigation servitude; this was granted in November, 1975. The judgment rejected defendants’ demands for interest from October, 1972, but did allow interest from the date of filing of suit. This Court amended the judgment to allow interest from the date of judgment only. The Supreme Court acted on the application for writs as follows:

“Writ denied. The result is correct.
Additional concurring reasons.
We construe the judgment of the Court of Appeal as an award of the avigation servitude to the plaintiffs and a money judgment in favor of defendants.

SUMMERS, J.,

concurring. I am of the opinion the money judgment awarded defendants the interest which defendants contend is due.

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

Defendants contend that this action had the effect of a summary judgment amending the decision of the Court of Appeal so as to allow them interest from October, 1972. The lower court did not agree nor do we.

Admittedly, the Supreme Court has supervisory power over all other courts. Its rules allow the grant of summary relief when a writ is granted. In the instant case, however, the writ was denied. The concurring additional reasons, even if subject to the interpretation made by defendants, do not outweigh the positive effect of:

“Writ denied. The result is correct.”

This left effective the judgment of the Court of Appeal allowing interest only from the date of judgment. The lower court was correct in denying the relief sought.

AFFIRMED.

      . 339 So.2d 431 (1st Cir. 1976).

      .Art. 5, Sec. 5(A), LSA Const. (1974):
      “Section 5. (A) * * * The Supreme Court has general supervisory jurisdiction over all other courts. It may establish procedural and administrative rules not in conflict with law . . .

      . Rule X, Sec. 3 of the Louisiana Supreme Court Rules:
      “Section 3.
      ******
      (b) At the time the writ is granted, the court may order summary relief. * * * ”