author: SANDERS, Chief Justice.

text:
    Robert N. SAMUELS v. FIRESTONE TIRE & RUBBER COMPANY.
    No. 58352.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Rehearing Denied March 2, 1977.

      Lucas J. Giordano, Mmahat, Gagliano, Duffy & Giordano, Metairie, for plaintiff-applicant.
    Benjamin R. Slater, Jr., William J. Hamlin, Michael R. O’Keefe, III, Monroe & Lem-ann, New Orleans, for defendant-respondent.

       Calogero, J., was of the opinion that a rehearing 'should be granted.

   SANDERS, Chief Justice.

Plaintiff, Robert N. Samuels, a real estate broker, sued Firestone Tire & Rubber Company for his real estate commission based upon an alleged oral listing agreement for the sale of immovable property. The property was not sold; however, plaintiff contends that he earned his commission by procuring a buyer willing to purchase at plaintiff’s price. The district court found in favor of the plaintiff, and the defendant appealed. The Court of Appeal reversed and rendered judgment in favor of defendant. La.App., 333 So.2d 729 (1976). We granted writs to review the Court of Appeal’s judgment. La., 337 So.2d 872 (1976).

It is well-settled that an agreement listing immovable property for sale with a real estate broker need not be in writing. A contract between seller and agent may be made orally or a written contract may be changed orally. Whatley v. McMillan, 152 La. 978, 94 So. 905 (1922); Olympic Homes, Inc. v. Ory, La.App., 207 So.2d 258, writ ref., 252 La. 113, 209 So.2d 41 (1968); Caruso-Goll v. Gallo, La.App., 205 So.2d 57 (1968) and cases cited therein. Likewise, it is well-settled that a sale need not be consummated for an agent to earn his commission. The agent is entitled to his commission when he has secured a purchaser ready, able, and willing to buy on vendor’s terms even though no sale is consummated because of actions of the owner. Peck v. Bemiss, 10 La.Ann. 160 (1855), Strahan v. Weiland, La.App., 216 So.2d 169 (1968); Olympic Homes, Inc. v. Ory, supra.

The plaintiff relies upon an oral agreement to pay a real estate commission of $5,000.00. The case, therefore, reduces to a single issue: whether or not Samuels has proved the existence of the oral agreement to pay the commission under the provisions of Louisiana Civil Code Article 2277, which provides:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.”

Since the contract here involves more than five hundred dollars, the proof components are one credible witness and other corroborating circumstances.

We agree with the Court of Appeal that plaintiff may, himself, fulfill the requirement for at least one credible witness in Article 2277. Cormier v. Douet, 219 La. 915, 54 So.2d 177 (1951); Olympic Electric Service, Inc. v. Craig, La.App., 286 So.2d 182 (1973); King v. Jarvis, La.App., 144 So.2d 616 (1962); Pino v. Bennett, La.App., 126 So.2d 460 (1961); and cases cited therein. We, however, disagree with the Court of Appeal’s finding that: “When this record is carefully examined, it becomes apparent that the second requirement of Article 2277 has not been fulfilled by Samuels. It is barren of any testimony or evidence which can properly be categorized as acceptable proof of ‘other corroborating circumstances.’ ”

The phrase “other corroborating circumstances” in Article 2277 means general corroboration. It does not require independent proof of every detail of the witness’s testimony. Morris v. Pratt, 114 La. 98, 38 So. 70 (1905); King v. Jarvis, La.App., 144 So.2d 616 (1962).

In Cormier v. Douet, supra, this Court stated:

“Since the requirement of Article 2277 R.C.C. is such that it of necessity draws into its legal vortex the sufficiency of proof shown by the record, and since the evidence is correlated with the credibility of the witnesses, the district judge’s conclusions must be accepted, unless they are manifestly erroneous. Barnes v. Le Blanc, 207 La. 989, 22 So.2d 404; Thornton v. Ellington, 209 La. 613, 25 So.2d 282; Meridian Land & Mineral Corp. v. Bagents, 211 La. 627, 628, 30 So.2d 563, and Martin v. Martin, 212 La. 1092, 34 So.2d 329.”

The real estate broker testified that he had corresponded with George Burck, a representative of the Firestone Real Estate Department; this testimony is corroborated by exhibits in the record. The broker sent defendant an Agreement to Purchase or Sell Real Estate for $100,000.00, dated January 13, 1972, covering the subject property. The agreement contained a provision for an agent’s commission of 6% payable by the seller. Burck acknowledged receipt of the Agreement by letter dated February 1, 1972. This letter, which made no mention of the agent’s commission, rejected the proposal, stating:

“I have been informed by our management that they would sell the property for $150,000, and you can accept this as a bona fide offer to sell.”

Subsequently, the broker sent Burck another Agreement to Purchase or Sell Real Estate, dated February 6, 1972, for $111,-466.00, also stipulating a 6% agent’s commission payable by seller. Firestone rejected the offer as too low, and there is no indication that there was any discussion of the payment of the agent’s commission. It is obvious from the contracts sent to defendant that plaintiff expected defendant to pay his commission. In neither brief nor argument does defendant explain why there was no discussion regarding the agent’s commission, if defendant had no intention of paying it. Moreover, the testimony discloses that all parties were familiar with the real estate business and that it was the custom in the real estate field for the seller to pay the agent’s commission.

Plaintiff further testified that his client finally offered to pay the full $150,000.00 which defendant wanted for its property. This is corroborated by an.Agreement to Purchase or Sell Real Estate for the amount of $150,000.00, dated February 29, 1972, and signed by plaintiff and his client. Plaintiff further testified that, when his client agreed to pay the full $150,000.00, he telephoned Burck and was informed for the first time that defendant had no intention of paying the agent’s commission. Plaintiff then testified that, to salvage the sale, he agreed to take a $5,000.00 commission rather than 6%. Plaintiff stated that, pursuant to the telephone agreement, he filled out an Agreement to Purchase or Sell Real Estate for the amount of $150,000.00, with a $5,000.00 commission, had his client sign the Agreement, and mailed it to Burck who rejected the Agreement. The fact of the telephone call is corroborated by a receipt for the call.

Burck admits the call but strenuously denies that he and the broker reached any agreement as to the commission. Nonetheless, the circumstance that the commission was revised to a specific discounted figure in the last contract strongly corroborates plaintiff’s testimony.

On the basis of the corroborating circumstances, the trial court found that the agreement to pay the $5,000.00 commission had been adequately established. As we have observed, this finding is entitled to great weight.

We conclude that the proof requirements of Article 2277 of the Louisiana Civil Code have been satisfied.

For the reasons assigned, the judgment of the Court of Appeal is reversed, and the judgment of the Civil District Court for the Parish of Orleans is reinstated and made the judgment of this Court. Defendant is assessed for all costs.

CALOGERO, J., dissents for the reasons expressed in the opinion of the court of appeal.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    Sylvester Ray JOHNSON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 58391.
    Supreme Court of Louisiana.
    Jan. 24, 1977.
    Rehearing Denied March 2, 1977.

      Iddo Pittman, Jr., Pittman & Matheny, Hammond, for defendant-respondent.
    Charles B. W. Palmer, Amite, for plaintiff-applicant.
   MARCUS, Justice.

This is a suit for recovery of benefits under “Coverage T — Total Disability” provisions of an automobile insurance policy issued to Sylvester Ray Johnson by State Farm Mutual Automobile Insurance Company. Plaintiff also seeks penalties and attorney fees.

Coverage T provides as follows:

Coverage T — Total Disability — Maximum 200 Weeks. To pay weekly indemnity at the rate stated in the exceptions for the period of continuous total disability of the insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while in or upon or while entering into or alighting from, or through being struck by, an automobile, provided (1) such liability shall commence within twenty days after the date of the accident, and (2) any disability during the period of fifty-two weeks from its commencement shall be deemed total disability only if it shall continuously prevent the insured from performing every duty pertaining to his occupation, and (3) any disability after said fifty-two weeks shall be deemed total disability only if it shall continuously prevent the insured from engaging in any occupation or employment for wage or profit, and (4) the weekly indemnity for total disability as provided herein above shall in no event extend beyond a period of 200 consecutive weeks from the date of commencement of disability as provided above.

On Saturday, July 27, 1972, plaintiff sustained bodily injuries resulting from an automobile accident. Plaintiff was forty-five years old at the time and had been employed as a sawyer for some twenty-seven years. His employment as a sawyer required strenuous physical activity on his part. At the time of his injury, plaintiff was earning about $240 per week. Plaintiff was taken from the accident scene to the hospital where he was treated for complaints of pain in his head, neck and back and was then released. On the following Monday, Mr. Johnson went to work at the saw mill but, because of pain in his neck and back, he was able to work for only two days. Plaintiff was seen by Dr. C. G. Forrest on August 1,1972. At this time, plaintiff complained of headaches, a severe crick in the neck and pain up and down his spine. According to Dr. Forrest, plaintiff had rigid cervical muscles and pain with turning his neck in either direction. He remained at home unable to return to work and continued to be treated by Dr. Forrest. Against the advice of Dr. Forrest and for economic reasons, plaintiff returned to his occupation as a sawyer on September 4, 1972. While at work, plaintiff continued to experience pain despite the fact that he took pain medication. He underwent home traction upon the advice of Dr. Forrest and traveled to Hammond after working hours for heat treatment and therapy. During this period, he also continued to be treated by Dr. Forrest. On January 10, 1973 (some seventeen weeks after he had returned to work) plaintiff suffered a blackout. Dr. Forrest then recommended that plaintiff see a neurosurgeon. Plaintiff was thereafter treated by Dr. Homer D. Kirgis, a neurosurgeon.

During the period from January until June, 1973, Dr. Kirgis performed two mye-lograms (one on January 29, 1973 and the other on June 4, 1973) and a discogram (on June 25, 1973) on plaintiff for a suspected cervical injury. Dr. Kirgis concluded that plaintiff had a ruptured intervertebral disc at the cervical level. Plaintiff was also seen by Dr. John D., Jackson in May of 1973. After suit was filed on October 23, 1973, plaintiff was examined by Drs. Richard W. Levy and George R. Cary, Jr. at the request of defendant.

The trial judge found that plaintiff was totally disabled as a result of the accident (July 27, 1972) and that his disability continued during the entire period of coverage (200 weeks). He made a specific finding that at no time since the accident had plaintiff been free of pain. Accordingly, he awarded plaintiff benefits for the entire period of coverage (200 weeks) subject to a credit of $1,250 for the twenty-five weeks of disability payments previously paid. The trial judge also found that State .Farm’s failure to pay the claims under the policy subjected it to a penalty of double the amount of benefits due together with reasonable attorney fees which the court fixed at $4,500. Defendant appealed. Plaintiff answered the appeal seeking an increase in the award for attorney fees.

The court of appeal found that plaintiff was totally disabled from the date of the accident (July 27, 1972) until he returned to work on September 4, 1972. He worked full time from then until January 10, 1973 when he again became totally disabled because of a ruptured disc in the cervical spine. The appeal court further found that, although plaintiff was working in pain between September 4, 1972 and January 10, 1973, the record did not suggest that plaintiff was unable to perform every duty of his occupation. Accordingly, plaintiff’s disability was not continuous from the time of the accident. As a result, plaintiff was not entitled to recover benefits for any disability subsequent to his return to work. Judgment of the trial court was reversed and plaintiff’s suit was dismissed. 334 So.2d 478 (La.App. 1st Cir.1976). We granted plaintiff’s application for certiorari to review the correctness of this judgment. 337 So.2d 878 (La.1976).

Our review of the record reveals that plaintiff suffered a disabling injury as a result of the automobile accident on July 27, 1972. There is no serious dispute that his disability was total and continued until he returned to work on September 4, 1972. Defendant paid plaintiff benefits under the policy during this period. At this point in time, plaintiff’s injury had not yet been diagnosed as a ruptured disc. The record does not indicate the extent to which plaintiff performed the duties of his occupation when he returned to work; however, it does support a finding that he continued to work in pain without any intervening cause. It is also clear that, after plaintiff blacked out on January 10, 1973, the injury about which he had continuously complained was diagnosed as a ruptured disc. The medical testimony fully supports this finding. Therefore, plaintiff’s subjective complaints of pain were corroborated by this subsequent diagnosis. Plaintiff made no further attempt to return to work.

The pivotal issue for our determination is whether the continuity of plaintiff’s disability was broken by his returning to work for seventeen weeks (September 4, 1972 to January 10, 1973), during which period he apparently performed all duties of his occupation even though he worked in pain and ultimately abandoned his employment because of his disabling injury. The court of appeal considered that plaintiffs disability was not continuous under these circumstances. We disagree.

The condition in the policy providing for payments in the event plaintiff becomes totally disabled from performing every duty of his occupation during the period of fifty-two weeks from the commencement of the disability or thereafter if he is unable to engage in any occupation or employment for wage or profit does not mean that plaintiff must, in order to avail himself of these benefits, become absolutely helpless, but merely requires such disability as renders him unable to perform the substantial and material part of his occupation in the usual and customary way. Whether or not total disability is continuous depends upon the facts and circumstances of each case.

In the instant case, plaintiff had worked at his occupation as a sawyer for many years prior to being injured as a result of an automobile accident on Saturday, July 27, 1972. He attempted to return to work on the following Monday but was compelled to quit after two days because of severe pain in his head, neck and back. He immediately sought and underwent medical treatment to help alleviate his disability. He remained at home in a disabled condition for some five weeks. Against the advice of his treating physician and for economic reasons, plaintiff again attempted to return to work on September 4, 1972. While at work, plaintiff continued to experience pain despite the fact that he took pain medication. He underwent home traction and traveled to Hammond after working hours for heat treatment and therapy. He also continued to be seen by Dr. Forrest during this period. Finally, on January 10, 1973, some seventeen weeks after he had returned to work, plaintiff blacked out. Thereafter, he was treated by Dr. Kirgis, a neurosurgeon, who concluded that plaintiff had suffered a ruptured disc at the cervical level. Plaintiff abandoned any further attempt to return to work.

We are convinced, under the facts and circumstances of this case, that plaintiff’s total disability was continuous despite the fact that he returned to work for a period of seventeen weeks. In other words, the continuous nature of plaintiff’s disability was not negated or broken by his attempt to return to work during the period in question under the circumstances herein. We further find that plaintiff’s total disability extended through the period of maximum coverage under the policy. Accordingly, plaintiff is entitled to benefits for 200 weeks at the rate of $50 per week from the date of commencement of disability (July 27, 1972), subject to a credit of $1,430 for payments previously made.

We must next consider plaintiff’s claim that the discontinuance of benefit payments by defendant was arbitrary, capricious or without probable cause, thereby subjecting it to the payment of penalties and attorney fees.

An insurer’s conduct in discontinuing payment of benefits under a policy must be judged primarily upon the facts existing and known to it at the time the payment was stopped. These facts must justify the discontinuance for the insurer to escape the penalty provisions of the statute. Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974); Lee v. Smith, 248 La. 16, 176 So.2d 413 (1965). Where there is a valid dispute between the claimant and the insurer as to the cause of claimant’s disability or as to whether claimant is in fact disabled, no penalties and attorney fees are due.

In the instant case, no payments were made after July 10, 1973. A letter from claim superintendent, Tommy Seabaugh, to agent, Joe Foulks, dated July 11, 1973, stated:

I note that Dr. Forrest indicates on the report he sent to us that Mr. Johnson had a ruptured disc.

Again, in a letter dated July 16, 1973, Sea-braugh wrote to Foulks and stated:

There is no question that Mr. Johnson is totally disabled to perform any kind of work.

Defendant did not seek to have plaintiff examined by medical experts until after suit was filed on October 23, 1973.

Considering the record as a whole, we are convinced that defendant insurance company knew that plaintiff had suffered a disabling injury at the time payments were discontinued. There was no medical testimony to the contrary at this time. Therefore, there was no valid dispute as to whether plaintiff was in fact disabled. Nor does the record reveal any valid dispute as to the cause of plaintiff’s disability. Under these circumstances, we find no manifest error in the conclusion of the trial judge that defendant’s discontinuance of benefit payments to plaintiff was arbitrary, capricious and without probable cause.

The trial judge assessed penalties provided by La. R.S. 22:657. We consider that he erred in this respect.

La. R.S. 22:656 provides the time within which payment of death claims shall be made. La. R.S. 22:657 provides when payment of all “claims arising under the terms of health and accident contracts” shall be paid. And La. R.S. 22:658 provides when payment shall be made by all “insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657.”

La. R.S. 22:6 classifies and defines insurance as follows:

(2) Health and accident. Insurance against bodily injury, disablement or death by accident and against disablement resulting from sickness and every insurance appertaining thereto.
(3) Vehicle. Insurance against loss or damage to any land vehicle or aircraft or any draft or riding animal or to property while contained therein or thereon or being loaded or unloaded therein or therefrom, and against any loss or liability resulting from or incident to ownership, maintenance, or use of any such vehicle or aircraft or animal.
Insurance against accidental death or accidental injury to individuals including the named insured while in, entering, alighting from, adjusting, repairing, cranking, or caused by being struck by a vehicle, aircraft, or draft or riding animal, if such insurance is issued as part of insurance on the vehicle, aircraft, or draft or riding animal, shall be deemed to be vehicle insurance.

Plaintiff’s claim is based on insurance coverage against accidental injury resulting from an automobile accident. The insurance was issued to plaintiff as part of an automobile insurance policy. Under the clear language of the above quoted provisions. we conclude that the policy involved in the present suit is not health and accident insurance under La. R.S. 22:657 but, rather, vehicle insurance under La. R.S. 22:658. Therefore, the penalty provisions of this latter statute are applicable here. Defendant insurer is subject thereunder to a penalty, in addition to the amount due, of 12% damages on the amount due, together with reasonable attorney fees.

After reviewing the record and considering the time spent by plaintiffs attorney in the trial court, court of appeal and this court in the prosecution of this claim, we find that an award of $2,500 would be adequate under the circumstances. We consider that the trial judge abused his discretion in fixing attorney fees at $4,500.

We find no error in the fixing of expert witness fees of Drs. Levy, Cary, Jackson and Forrest at $100 each by the trial judge. However, we do consider that he abused his discretion in fixing the expert witness fee of Dr. Kirgis of $250. Dr. Kir-gis did not testify at trial; however, his deposition was used. Since his deposition was more extensive than the other doctors deposed, we feel that $150 would be adequate under the circumstances.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and set aside; it is ordered that there be judgment in favor of plaintiff, Sylvester Ray Johnson, and against defendant, State Farm Mutual Automobile Insurance Company, condemning defendant to pay plaintiff benefits for 200 consecutive weeks at the rate of $50 per week from the date of commencement of disability (July 27, 1972), subject to a credit of $1,430 for payments previously made, together with legal interest from date of judicial demand until paid on payments due prior to judicial demand and on those payments due thereafter legal interest from the date each payment became due until paid, plus a penalty of 12% damages on the total amount of benefits due and attorney fees of $2,500. Expert witness fees are taxed as costs in the sum of $100 each to Drs. Levy, Cary, Jackson and Forrest and in the sum of $150 to Dr. Kirgis. All costs of these proceedings are taxed to defendant.

DIXON, J., dissents from the reduction of the attorney fee, but otherwise concurs.

      . The trial judge found that defendant made payments to plaintiff in the sum of $250 on February 21, 1973; $350 on April 19, 1973; $250 on May 21, 1973; $200 on June 13, 1973; and $200 on July 10, 1973.

        .Ayres v. New York Life Ins. Co., 219 La. 945, 54 So.2d 409 (1951); Nomey v. Pacific Mut. Life Ins. Co., 212 La. 820, 33 So.2d 531 (1947); Strauss v. New York Life Ins. Co., 204 La. 202, 15 So.2d 61 (1943); Harris v. New York Life Ins. Co., 195 La. 853, 197 So. 579 (1940); Crowe v. Equitable Life Assur. Soc., 179 La. 444, 154 So. 52 (1934); Miller v. American Cas. Co., 263 So.2d 398 (La.App. 4th Cir.1972), writ refused, 262 La. 1151, 266 So.2d 441; Felker v. Aetna Life Ins. Co., 234 So.2d 758 (La.App. 1st Cir.1970), writ refused, 256 La. 377, 236 So.2d 503; Pete v. Metropolitan Life Ins. Co., 171 So. 868 (La.App. 1st Cir.1937); Cates v. Jefferson Standard Life Ins. Co., 159 So. 168 (La.App. 2d Cir.1935); Manuel v. Metropolitan Life Ins. Co., 139 So. 548 (La.App. 1st Cir.1932).

      . The disability benefits under the policy were only $50 per week, whereas plaintiffs weekly salary as a sawyer was approximately $240.

      . See footnote 1 for listing of amounts and dates of payments made by defendant to plaintiff as found by the trial judge. In addition to these payments, we find that defendant paid plaintiff the sum of $180 on October 25, 1972. This accounts for the difference between the total amount of payments found by the trial judge ($1,250) and that found by this court ($1,430).


author: PER CURIAM.

text:
    STATE of Louisiana v. James Kent HODGES.
    No. 58583.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Rehearing Denied March 2, 1977.
    Edwin Dunahoe, Law Offices of Gerard F. Thomas, Jr., Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Eric R. Harrington, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Thomas R. BUCKLEY.
    No. 58687.
    Supreme Court of Louisiana.
    Feb. 2, 1977.
    Robert E. Piper, Jr., Piper & Brown, Shreveport, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., E. L. Edwards, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Junius WILSON.
    No. 57303.
    Supreme Court of Louisiana.
    Feb. 10, 1977.
    George M. Leppert, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Louise S.Korns, Asst. Dist. Attys., New Orleans, for plaintiff-appellee.
   PER CURIAM.

On September 27, 1973, the Orleans Parish Grand Jury indicted defendant, Junius Wilson, for the crime of aggravated rape. La.R.S. 14:42. Defendant was tried, convicted and sentenced to life imprisonment. We affirm.

ASSIGNMENT OF ERROR NO. 1

Defendant’s failure to object to the alleged error complained of constituted a waiver of his objection. La.C.Cr.P. art. 841; State v. Brown, 329 So.2d 701 (La.1976). This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant could properly be questioned as to a court martial conviction. We have previously held that La.R.S. 15:495 contemplates “the use of evidence of a conviction for the violation of a penal provision for which imprisonment can be imposed.” State v. Bradford, 298 So.2d 781, 792 (La.1974). The conviction in question fulfills that requirement. See 10 U.S.C.A. § 856. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

This assignment was expressly abandoned.

Accordingly, defendant’s conviction and sentence are affirmed.


author: DIXON and CALOGERO, JJ.,

text:
    FIRST NATIONAL BANK OF COMMERCE, NEW ORLEANS, Louisiana v. Ellwood J. WEHRWEIN d/b/a Wehrwein Company.
    No. 59345.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: First National Bank of Commerce, N. 0., La. applying for Supervisory Writs of Certiorari, Prohibition and Mandamus

Granted. The order of the court of appeal is annulled and set aside.

DIXON and CALOGERO, JJ.,

are of the opinion the writ should be denied.


author: DIXON, J.,

text:
    STATE ex rel. Judy D. BACKERT aka Judy D. Tallent v. Victor G. WALKER, Warden.
    No. 59217.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: Judy D. Backert aka Judy D. Tallent, applying for writ of Habeas Corpus.

Writ denied. Application is without merit.

DIXON, J.,

dissents from the denial. When the federáis convict for robbing a bank, the state should not be permitted to prosecute again for the same offense. (If the accused is acquitted in the federal system, he cannot again be tried in the state courts).


text:
    Daniel E. BECNEL, Jr. v. Donald BOUDREAUX.
    No. 59219.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: Daniel E. Becnel, Jr., applying for Certiorari, or writ of review, to the Court of Appeal, 340 So.2d 687, Fourth Circuit, Parish of St. John the Baptist.

Writ denied. The result is correct.

DIXON, J.,

dissents from the denial.


author: TATE, DIXON and DENNIS, JJ.,

text:
    STATE of Louisiana v. Murrill CONERLY.
    No. 59378.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
   In re: Murrill Conerly, applying for writs of certiorari, review, prohibition and mandamus and Stay Order.

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

TATE, DIXON and DENNIS, JJ.,

concur, believing the issue is not posed until after the witnesses testify on direct for the state; if the defendant is then denied access to the grand-jury testimony of these witnesses for purposes of cross-examination, a substantial confrontation right may be denied him. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).


text:
    STATE of Louisiana v. Clifford R. FREEMAN.
    No. 59281.
    Supreme Court of Louisiana.
    Feb. 10, 1977.
   In re: Clifford R. Freeman, applying for supervisory writs and stay order.

Writ granted. It is ordered that a preliminary examination be held prior to trial. Art. 1, Sect. 14, La. Constitution (1974).


text:
    Mrs. Mae Savoie THIBODEAUX v. Robert A. BURNS, Jr. and James J. Messmer.
    No. 59139.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Robert A. Burns, Jr. and James J. Messmer applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Terrebonne.

Writ denied. The result is correct. See Mitchell v. Bertolla, 340 So.2d 287 (La.1976).


text:
    STATE of Louisiana ex rel. Jimmy L. TAYLOR v. Honorable M. BRANIFF, Judge.
    No. 59148.
    Supreme Court of Louisiana.
    Feb. 16, 1977.
   In re: Jimmy L. Taylor, applying for writ of mandamus.

Writ granted. Hearing ordered to determine whether applicant’s retention in parish prison pending appeal involves a serious security risk. See State ex rel. Matthews v. Henderson, 292 So.2d 496 (La.1974) and State v. Clark, La., 317 So.2d 623, decided Sept. 8, 1975.


text:
    STATE of Louisiana v. Gregory HOLMES.
    No. 59184.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: State of Louisiana through District Attorney, Harry F. Connick applying for writ of certiorari, mandamus and prohibition.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Jerome M. Winsberg, Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 3rd day of March, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 20th day of May, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Joseph I. LESSARD v. LESSARD ACRES, INC., et al.
    No. 59173.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: First National Bank of Port Allen applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of Ascension. 340 So.2d 351.

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


text:
    Jim DIXON v. J. E. GUTNECHT et al.
    No. 59156.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Jim Dixon applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 339 So.2d 1285.

Writ denied. On the facts found by the court of appeal, there is no error of law in the judgment.


text:
    STATE of Louisiana ex rel. Eddie BURKHALTER v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 59151.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Eddie Burkhalter, applying for writs of certiorari, prohibition and mandamus.

Writ refused. No merit in application.


text:
    STATE of Louisiana ex rel. Charles PRICE, Sr. v. STATE of Louisiana.
    No. 59031.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Charles Price, Sr., applying for writ of habeas corpus and writs of certiora-ri.

Writ denied. Considering the return of the trial judge, the minutes of court of May 15, 1974 and the transcript of the hearing on that date on the motion for appeal there is no merit to this application.


text:
    STATE of Louisiana ex rel. Albert CLARK v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 58990.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Albert Clark, applying for writs of certiorari, mandamus and prohibition.

Writ denied. On the showing made relator is not entitled to the relief requested.


text:
    In re the MUNICIPAL COURT FOR the CITY OF NEW ORLEANS.
    No. 59346.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: American Civil Liberties Union applying for remedial writs.

On Motion of applicant, withdrawing, the application is dismissed.


text:
    Donald Wayne SALEMI et ux. v. ST. PAUL FIRE & MARINE INS. CO. et al. William L. KIRBY, Sr., et ux. v. ST. PAUL FIRE & MARINE INS. CO. et al.
    No. 59188.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Donald Wayne Salemi et ux. and William L. Kirby, Sr., et ux. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 339 So.2d 1264.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.


text:
    Julia McFarland v. CROWLEY INDUSTRIES, INC., et al.
    No. 59160.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Crowley Industries, Inc., et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Acadia. 339 So.2d 861.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    STATE of Louisiana v. Mary L. LAUDERMILK.
    No. 59177.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Mary L. Laudermilk applying for writs of certiorari, prohibition, mandamus and stay order.

Application denied; there is no merit in assignments of error.


text:
    Terrance J. MAURER et al. v. Octave CABALLERO et al.
    No. 59171.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Terrance J. Maurer, et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Assumption. 339 So.2d 1313.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    STATE of Louisiana ex rel. Samuel STARKS v. Ross MAGGIO, Jr., Warden, Louisiana.
    No. 59229.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Samuel Starks, applying for writs of habeas corpus and certiorari.

Writ denied: The application does not state any claim entitled to post conviction relief. The sentences imposed were legal.


text:
    STATE of Louisiana ex rel. Joseph Jimmy CARTER v. Hon. Robert M. FLEMING, Judge, 16th Judicial District Court.
    No. 59212.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Joseph Jimmy Carter applying for writ of habeas corpus.

Writ denied. On the showing made, the relator is not entitled to the relief sought.


text:
    MAYFAIR SALES, INC. v. Oscar SAMS.
    No. 59199.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Mayfair Sales, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Livingston. 339 So.2d 1277.

Writ denied. No error of law.


text:
    Albert MARCOTTE v. ATLAS CONSTRUCTION CO., INC. and Highlands Ins. Co.
    No. 59191.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Atlas Construction Co., Inc. and Highlands Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Ascension. 340 So.2d 341.

Writ denied. No error of law.


text:
    Perry M. SEGURA d/b/a Perry Segura and Associates v. LOUISIANA ARCHITECTS SELECTION BOARD et al.
    No. 59189.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Edwin W. Edwards, Governor, State of Louisiana, Division of Administration, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 340 So.2d 369.

Writ denied: On the facts found by the Court of Appeal, we cannot find that the Court of Appeal erred.


text:
    STATE of Louisiana v. Hugh C. WILBOURN.
    No. 59182.
    Supreme Court of Louisiana.
    Feb. 18, 1977.
   In re: Hugh C. Wilbourn, applying for writs of certiorari, mandamus and prohibition.

Writ denied. Adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. Claude WILLIAMS.
    No. 59355.
    Supreme Court of Louisiana.
    Feb. 23, 1977.
   In re: Claude Williams applying for writs of certiorari or review, prohibition and mandamus.

Writ denied. Adequate remedy by review in the event of conviction.


text:
    STATE of Louisiana v. James COLLINS, Jr.
    No. 59369.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: State of La. through D.A., Ossie Brown, applying for supervisory writs and stay order.

Writ denied. Absent palpable error and clear prejudice we are not disposed to interfere with the orderly proceedings in the trial court.


text:
    Jerry WYATT et al. v. VERNON PARISH POLICE JURY et al.
    No. 59248.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: Jerry Wyatt, et al. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vernon. 341 So.2d 468.

Writ denied and stay order recalled. There is no error of law in the court of appeal’s judgment.


text:
    B. F. ALBRITTON, Jr. v. VERNON PARISH POLICE JURY et al.
    No. 59247.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: B. F. Albritton, Jr. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vernon. 341 So.2d 475.

Writ refused and stay order recalled. There is no error of law in the court of appeal’s judgment.


text:
    Hon. John S. COVINGTON v. Col. Malcolm MILLET, Secretary of Public Safety and Lt. Leon B. Millet, Louisiana State Police.
    No. 59354.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: Col. Malcolm Millet, Secretary of Public Safety and Lt. Leon B. Millet, Louisiana State Police, applying for writ of prohibition and mandamus.

Writ denied. Application is premature. Petitioners have not in the district court moved to set aside the trial judge’s Jan. 26, 1977 order of expungements. Nor has the contempt hearing yet been held.


text:
    STATE of Louisiana ex rel. Abner Roy LYNCH v. STATE of Louisiana.
    No. 59264.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: Abner Roy Lynch, applying for writ of review.

Application not considered; the case is presently pending on appeal.


text:
    STATE of Louisiana ex rel. Truman Eldin McDonald v. HON. JUDGE, SECTION TWENTY FOUR, JUDICIAL DISTRICT CRIMINAL DISTRICT COURTS BUILDING, PARISH OF JEFFERSON, GRETNA, Louisiana.
    No. 59259.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: Truman Eidin McDonald, applying for writ of mandamus and/or remedial writs.

Writ refused. According to the return of the trial judge, he has now acted on relator’s petition (on January 10,1977). Hence, this application is moot.


text:
    STATE of Louisiana v. Barry BALLARD.
    No. 59235.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: Barry Ballard applying for writs of certiorari and mandamus.

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


text:
    STATE of Louisiana v. Adam MACK et al.
    No. 59243.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: Adam Mack, applying for writs of certiorari, mandamus and prohibition.

Granted. It is ordered that relator be given credit towards service of his sentence for time spent in actual custody prior to the imposition of his present sentence on December 12, 1972. La.Code of Criminal Procedure, Art. 880, amended by Acts 1970, No. 285, § 1.


text:
    STATE of Louisiana ex rel. Herbert JOSEPH, v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59234.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: Herbert Joseph applying for writs of habeas corpus, certiorari, prohibition and mandamus.

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


text:
    ORLEANS PARISH SCHOOL BOARD v. PITTMAN CONSTRUCTION CO., INC., et al.
    No. 59232.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: Pittman Construction Co., Inc., et al. applying for writs of certiorari, prohibition and mandamus.

Writ denied. There is no error in the trial judge’s order referring this case including exceptions to the commissioner for hearing with direction to have commissioner report back to the court on the hearing with recommendations.


text:
    STATE of Louisiana v. David E. TYNES.
    No. 59224.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: David E. Tynes applying for writs of certiorari, prohibition, mandamus and stay order.

Writ refused. No error of law.


text:
    CITY OF LAFAYETTE v. Curtis J. DOMINGUE.
    No. 59222.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: Curtis J. Domingue applying for writs of certiorari, prohibition, mandamus and for stay order.

Writ denied. Defendant’s assignments of error are without merit.


text:
    STATE of Louisiana v. Shelly Herman BRAWLEY.
    No. 59241.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: State of Louisiana applying for supervisory writs.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Donovan W. Parker, Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 10th day of March, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 20th day of May, 1977, at 10 o’clock A. M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Ann Olivier ESTILETTE v. J. D. ESTILETTE.
    No. 59230.
    Supreme Court of Louisiana.
    Feb. 25, 1977.
   In re: J. D. Estilette, applying for writs of certiorari, and/or mandamus and/or review.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Douglas J. Nehrbass, Judge of the Fifteenth Judicial District, Court for the Parish of Lafayette, to transmit to the Supreme Court of Louisiana, on or before the 10th day of March, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 16th day of May, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Milton COX, Jr., et al. v. ST. JOHN THE BAPTIST PARISH BOARD OF SUPERVISORS OF ELECTIONS et al.
    No. 59373.
    Supreme Court of Louisiana.
    March 1, 1977.
   In re: Milton Cox, Jr., et al. applying for writs of certiorari.

Not considered. There is no showing that the relator has exercised whatever appellate remedy is available to him; nor has he applied to the supervisory jurisdiction of the court of appeal, as ordinarily required by us before entertaining supervisory review of a matter within appellate jurisdiction of that court.


text:
    Manuel WILSON, Jr., et al. v. Dr. Mary Pillow SCALES et al.
    No. 59395.
    Supreme Court of Louisiana.
    March 2, 1977.
   In re: Dr. Mary Pillow Scales and Dr. Kathleen Dunlap, applying for supervisory writs of mandamus, certiorari, prohibition and review.

Application denied for reasons stated by the court of appeal.


text:
    Akinori ECHIZENYA v. Joseph ARMENIO et al.
    No. 8478.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1976.
    Ralph D. Dwyer, Jr., New Orleans, for plaintiff-appellant.
    Maurice D. Armagnac, Metairie, for defendants-appellees.
    Before SAMUEL, BOUTALL and MORIAL, JJ.
   ON MOTION TO DISMISS

This matter is before us on appellees’ timely filed motion to dismiss the appeal. These facts are not in dispute:

The suit is for personal injuries resulting from an alleged tort. Plaintiff timely appealed from an adverse judgment which dismissed his suit. August 13,1976 was the return day set in the order of appeal. Three extensions of the return day were obtained by the deputy clerk, the first two from the trial court and the third (on December 9, 1976) from a judge of this court. The last extended return day was January 13, 1977. The trial court costs were paid January 17,1977 and the record was lodged in this court on the following day, January 18.

Attached to the motion is a certificate by the deputy clerk stating that the costs (of preparing the record and this court’s filing fee) were not paid “as of January 14, 1977” and that, by telephone, he had notified the attorney for the appellant the return day had been extended to January 13, 1977.

The attorney for the appellant concedes he received a telephone call “made some time in December” during which the deputy clerk requested payment of costs be forwarded by a specified date. His memorandum and opposition to the motion also states the appellant is a Japanese national with whom he has not been in contact for many months and that on January 17, when he was apprised of the expiration of the extension day as a result of his telephone call to the deputy clerk, he paid the costs with his own funds.

Code of Civil Procedure Article 2161 provides that an appeal shall not be dismissed because of any irregularity, error or defect unless it is imputable to the appellant. Thus, the question presented is whether the failure to lodge the record in this court on or prior to the last extended return day is imputable to the present appellant. If so, this appeal must be dismissed.

Prior to October 1, 1976, the effective date of Acts 426 and 708 of 1976, our jurisprudence was to the effect that under the facts of this case this appeal would be dismissed. However, Act 426 of 1976 amended and reenacted Article 2125 of the Code of Civil Procedure and that article now provides the trial court may grant only one extension of the return day for the appeal of a civil suit and that subsequent extensions of the return day shall be granted by the appellate court. Act 708 of 1976 adds a new article, 2125.1, to the Code of Civil Procedure and that new article reads, in part:

“When a subsequent extension of the return day is granted by the appellate court in accordance with the provisions of Article 2125, notice thereof shall be given by mail by the clerk of the trial court to counsel of record of all parties, and to parties not represented by counsel. The failure of the clerk of the trial court to mail such notice does not affect the validity of the appeal, nor does any error or defect that is not imputable to the appellant affect the validity of the appeal.” (Emphasis ours).

As shown by the above recited facts, the quoted provision of Act 708 of 1976 was not complied with in this case; no notice was given by mail of the extended return day granted by this court. The notice requirement is mandatory, appeals are favored, and we therefore hold that the failure to timely lodge the record is not imputable to the appellant.

For the reasons assigned, the motion to dismiss the appeal is denied.

MOTION DENIED.

      . See Louisiana Power & Light Company v. v. Imhoff, La.App., 311 So.2d 45. Lasseigne, 255 La. 579, 232 So.2d 278; Imhoff


author: CULPEPPER, Judge. GUIDRY, Judge,

text:
    Neil DASPIT, Plaintiff and Appellant, v. CITY OF ALEXANDRIA, Louisiana, Defendant and Appellee.
    No. 5709.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 2, 1977.
    Writ Refused-April 26, 1977.

      Gold, Hall, Hammill & Little by Charles S. Weems, III, Alexandria, for plaintiff and appellant.
    Ford & Nugent by Howard N. Nugent, Jr., Gus Voltz, Jr., Alexandria, for defendant and appellee.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   CULPEPPER, Judge.

Plaintiff, Neil Daspit, filed this suit for damages in the sum of $214,250 allegedly-suffered as a result of the defendant, City of Alexandria, breaching a contract to operate a sanitary landfill on plaintiff’s property. In the alternative, and in the event there was no contract, plaintiff seeks the same amount in quantum meruit. The trial judge found there was a contract and awarded plaintiff the sum of $8,750, representing the diminution in value of plaintiff’s property caused by the City’s use thereof. Plaintiff appealed, seeking an increase in the award. The City answered the appeal, contending no damages are due.

The substantial issues on appeal are (1) Does the letter agreement signed by Mayor Karst and plaintiff constitute a valid contract obligating the City to use plaintiff’s property as a “sanitary landfill”, or was Mayor Karst without authority to execute such a contract? (2) Under the circumstances of the present case, is the City estopped to deny the validity of the purported contract? (3) Is plaintiff entitled to damages under the doctrine of unjust enrichment or quantum meruit?

During mid-year of 1969, the City was advised by the Louisiana State Department of Health that its method of refuse disposal was unsatisfactory and in violation of the Sanitary Code of the State of Louisiana. In response to this criticism, the Rapides Area Planning Commission completed a solid waste disposal plan in September of 1971. The Rapides Area Planning Commission is a council comprised of the governing bodies of the City of Alexandria, the City of Pine-ville, and the Parish of Rapides. Representing the City of Alexandria at the time in question were Mayor Edward Karst and the two City Commissioners, O’Hearn Matthews and Carroll Lanier.

After an investigation into the various methods of waste disposal, the Planning Commission determined that a conventional sanitary landfill would be the most feasible operation for the Rapides Parish area. The Rapides Parish Sanitation Board prepared a study which set forth recommendations for suitable landfill sites in the Parish. This study cited soil types, available fill, cover materials, financing, distance required to transport the waste material, etc. as factors to be considered in choosing a suitable site for the landfill.

Using the criteria listed, the Sanitation Board evaluated several proposed landfill sites, including 100 acres owned by Daspit and located about three miles south of Alexandria. In a report dated March 28, 1972, the Board rejected the Daspit property, stating that a geological survey by the Louisiana Conservation Department disclosed it had inadequate cover material and a severe drainage problem, since it was located in the Bayou Boeuf floodway. In concluding its report, the Sanitation Board found several other proposed sites to be acceptable as possible waste disposal areas. Daspit was aware of the Sanitation Board’s rejection of his property.

The alleged contract between plaintiff and the City of Alexandria is in the form of a letter dated June 30, 1972 which reads as follows:

“June 30, 1972 3310 Horseshoe Drive Alexandria, La. 71301
Dear Mayor Karst;
This is your authority and permission to use my land on the Lake Charles Highway located approximately 3 miles from the South Circle for the purpose of operating a sanitary landfill for the City of Alexandria. It is understood that the City of Alexandria may permit its use by others. It is further understood that you will first utilize the 15 acres closest to the City of Alexandria that is bounded by Ewing property on the north.
The consideration for the use of my property is the good faith negotiation on the part of the City of Alexandria with me in the event that I should desire to operate the landfill on the terms and conditions that are included in the proposal of the Rapides Parish Sanitation Board. However in no event shall the City be denied the right to utilize the above mentioned 15 acres as a sanitary landfill.
It is understood that when the City of Alexandria completes the use of the 15 acres it will return the land to me.
If this proposal is satisfactory to you please sign below and return a copy to me.
Sincerely,
/s/ NEIL DASPIT Neil Daspit
/s/ C E KARST
C. Edward Karst, Mayor”

The 15 acres offered as a landfill site are part of the 100-acre tract rejected by the Sanitation Board in its report of March 28, 1972. Thus, Daspit was aware of the deficiencies in his property for use as a “sanitary landfill.”

Mayor Karst signed the proposal without presentation to, consultation with, or formal action by the Alexandria City Commission. In fact, there is no evidence that the other two members of the Commission ever saw the letter agreement signed by Karst.

The City of Alexandria has a commission form of government, composed of a mayor (who administers the Departments of Fire, Police and Sanitation), a commissioner of streets and parks, and a commissioner of finance and utilities. Karst was the mayor from June 17, 1969 until his term expired on June 17, 1973. Serving with him during this time were Carroll Lanier, Commissioner of Finance and Utilities, and O’Hearn Matthews, Commissioner of Streets and Parks.

The City began using Daspit’s property as a landfill in the first part of July, 1972. Work crews were transferred from the Department of Streets and Parks to the Sanitation Department in an attempt to ready the site for waste disposal. Roads into the landfill site were constructed, and the City authorized the purchase of a dragline in order to dig trenches on the site. In November of 1972, the City, under the authorization given by plaintiff, allowed the Rap-ides Parish Police Jury to use the property as a waste disposal area. All of these actions relating to the use of the Daspit property were subjects of discussion and action at City Council meetings. It is clear, therefore, that Commissioners Lanier and Matthews were aware that the City was using the Daspit property as a solid waste disposal site, and it is also clear that they never objected to the City’s use of the property.

The City experienced no problems in the operation of the landfill on plaintiff’s property until about November of 1972. Until this time, the operation ran smoothly and each day the garbage was dumped into the trenches, compacted, and then covered with soil, all in accordance with prescribed landfill methods as testified to by plaintiff’s expert, Donald R. Schneider. The situation became complicated thereafter when the Parish of Rapides began to utilize the area for disposal of solid waste. A further complication arose as a result of unusually heavy rains which caused most of the area to flood. The flood marked the end of the use of the Daspit property as a “sanitary landfill”. The bulldozer which was used to compact garbage got stuck in the mud. The garbage trucks could not venture off of the main road through the property. The operation from this point onward was described by the City’s Sanitation superintendent as a “nightmare”. The refuse was not compacted and covered on a daily basis. We reiterate, however, that both the plaintiff and Mayor Karst knew, when the letter agreement was signed, that the property was subject to the flooding conditions which finally stymied the landfill operation.

The City ceased operations on the Daspit property in late September of 1973. The property was raised an average of four to five feet in elevation by the operations, but it was poorly leveled. Partially buried refuse protruded through about one-fourth of the property’s surface. Some ponds remained, but test results show that the garbage was covered with six inches to 36 inches of soil.

Plaintiff never requested that the City quit dumping garbage on his property. It was not until the City ceased its operations that plaintiff filed this suit. We note that the garbage dumping operations continued through a change in City administration in June of 1973, following the election of John Snyder as Mayor, Malcolm Hebert as Commissioner of Streets and Parks, and Arnold Jack Rosenthal as Commissioner of Finance and Utilities.

The first issue is whether the above quoted letter agreement signed by only Mayor Karst and plaintiff was a valid contract obligating the City to conduct a “sanitary landfill” on plaintiff’s property. The trial court determined that this letter constituted a valid contract between the City and plaintiff for use of plaintiff’s property as a “sanitary landfill". We do not agree.

The governing authority of the City of Alexandria is the commission council composed of the mayor and two commissioners. The mayor and the commissioners have only such authority to administer the City departments and to sign city contracts as is granted to them by the commission council. Foti v. Montero, 243 La. 734, 146 So.2d 789 (1962). In Foti, the Supreme Court rejected the argument that each commissioner has authority to act or contract in respect to his own department without an authorization from the council. Similarly, in Smith v. Town of Vinton, 209 La. 587, 25 So.2d 237 (1946) the court stated that as a general rule a mayor acting alone is without power to execute a contract binding on the city in the absence of an ordinance or resolution by the governing council authorizing him to do so. In the present case, the Alexandria City Commission did not authorize Mayor Karst to execute a contract obligating the City to use the subject property as a “sanitary landfill”. Consequently, we hold thát the letter agreement executed by Mayor Karst did not constitute a valid contract with binding effect upon the City.

Alternatively, plaintiff argues that the doctrine of equitable estoppel should be invoked to prevent the City from denying the validity of the contract. We do not agree.

Our Supreme Court defined the doctrine of equitable estoppel in American Bank & Trust Company v. Trinity Universal Insurance Company, 251 La. 445, 205 So.2d 35 (1967) as follows:

Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. Founded upon good faith, the doctrine is designed to prevent injustice by barring a party, under special circumstances, from taking a position contrary to his prior acts, admissions, representations, or silence. Montague v. Weil & Bro., 30 La.Ann. 50; Shirey v. Campbell, La.App., 151 So.2d 557; 3 Pomeroy’s Equity Jurisprudence (5th ed. 1941), § 804, pp. 188-190; 31 C.J.S. Estoppel § 59, pp. 367-377; 28 Am. Jur.2d, Estoppel and Waiver, § 27, pp. 627-629.

The doctrine is applicable to municipalities under certain special circumstances, if the act or conduct relied on to create the estop-pel is within the corporate power of the municipality. See Rogers v. First Sewerage District of Lake Charles et al., 171 So.2d 820 (La.App. 3rd Cir. 1965). Unquestionably, waste disposal is within the corporate powers of the City of Alexandria. LSA-R.S. 33:401.

The doctrine of equitable estoppel, however, is not favored in the law because it bars the normal assertion of rights. Accordingly, courts apply the doctrine cautiously. American Bank v. Trinity Universal Insurance Company, supra. As we explained in Rodden v. Davis, 293 So.2d 578 (La.App. 3rd Cir. 1974, writ refused, La., 296 So.2d 832):

One who seeks to avail himself of the application of the principle must establish his right to do so with unusual clearness. A party may not invoke the doctrine of equitable estoppel except in good faith and after having exercised such diligence as would reasonably be expected under the prevailing circumstances to avoid mistake or misunderstanding. Being an equitable remedy, it must be applied with equity. Harvey v. Richard, 200 La. 97, 7 So.2d 674 (1942); Taylor v. Turner, 45 So.2d 107 (La.App. 2nd Cir. 1950); Henderson v. Rossi, 185 So.2d 92 (La.App. 4th Cir. 1966); Muhleisen v. Allstate Insurance Company, 203 So.2d 847 (La.App. 4th Cir. 1967).

Plaintiff argues that the City is estopped to deny the validity of the contract by both its affirmative conduct and its silence. The conduct upon which plaintiff relies to set up the estoppel is the City’s use of his property for waste disposal. The silence or inaction upon which plaintiff relies is the failure of any city official, including the commissioners, to object to the use of the property or to indicate in any manner that they did .not intend to fulfill the terms of the “contract”.

There is no evidence that either Commissioner Lanier or Commissioner Matthews had any knowledge of the “contract” executed by Mayor Karst. To the contrary, Commissioner Lanier testified that he never saw the letter agreement. Commissioner Matthews was deceased at the time of the' trial, so we do not have the benefit of his testimony on this point. The letter agreement was kept in Mayor Karst’s private files rather than in the files of the secretary-treasurer of the City with all of the other contracts to which the City was a party. Any knowledge that Commissioners Lanier and Matthews had of the agreement was gleaned from their reading reports in the public press and observation of the waste disposal activities on the Daspit property. From press accounts, the commissioners knew only that Mayor Karst had secured the permission of Daspit to use his property as a “sanitary landfill”. An article in the July 20, 1972 edition of the Alexandria Daily Town Talk conveyed the impression that there was no written contract, stating:

“. . . [T]here appears to be no written agreement, just a letter of authorization between the City and Daspit.
“City Attorney Howard Gist, asked about this, said he had not been contacted for any opinion relative to the landfill or to assist in drawing up any contract or agreement papers.”

We recognize, of course, that the description of the letter agreement contained in the newspaper article is not conclusive as to its legal nature or binding effect, but we note that Commissioners Lanier and Matthews, who were not lawyers, could conclude from reading the article that no written contract existed. In summary, the other two commissioners knew only that Das-pit authorized the City to use his property free of charge as a “sanitary landfill” and that the property was actually used for disposal of solid waste.

The commissioners had no knowledge of the most significant facts of this case. They did not know that Mayor Karst had signed the letter purporting to bind the City to use the Daspit property as a “sanitary landfill”. Even if they had known of the letter’s contents, they could not have known that Daspit interpreted the vague phrase “sanitary landfill” to mean nothing less than a guarantee on the part of the City to raise the elevation of the property several feet, level it, slope it, provide for its drainage, and finally seed it with grass. In other words, the commissioners had no way of knowing that Mayor Karst had, without authority, executed a contract, which, Das-pit contends, bound the City to transform Daspit’s low-lying, low value property into high, dry, valuable commercial highway frontage.

There is a line of jurisprudence holding that under special circumstances a governmental body can be estopped from denying the validity of a contract executed by a government official. One such case is Rogers v. First Sewerage District of Lake Charles et al., supra. There, we held that even though the president of the Sewerage Board exceeded his authority by allowing plaintiff to connect his sewerage line from his home ^outside the district to the system maintained by the District, the Sewerage Board was*estopped to deny sewerage service to the plaintiff because the members of the Board had full knowledge of the occurrence. In Smith v. Town of Vinton, supra, the mayor, without authority from the council, signed a contract with plaintiff to repair the town’s electric utility system. The court found that all of the members of the Board had full knowledge of the contract and of the fact that it had been performed, and held that plaintiff could invoke the doctrine of equitable estoppel against the city. Without expressly so stating, the courts in these two cases made it clear that equitable estoppel can be invoked to prevent a municipality from denying the validity of a contract only when the governing council has full knowledge of the existence of the contract and of its terms. To hold otherwise would foster the use of the secret agreement as a device to evade the formalities required by law to contract with municipalities.

Plaintiff’s estoppel argument rests heavily on the City’s silence, inaction, or failure to question the “contract”. In Harvey v. Richard, supra, our Supreme Court held that to effect an “estoppel by silence” the person estopped must have full knowledge of the facts and of his rights, and must also have an intent or willingness that others be deceived. See also Parker v. Ohio Oil Company, 191 La. 896, 186 So. 604 (1939); Westenberger v. State of Louisiana, 333 So.2d 264 (La.App. 1st Cir. 1976). In the present case, the city governing body had neither full knowledge of the facts nor did it have a demonstrated intent to deceive the plaintiff. The Harvey, Parker and Westenberger cases, supra, are factually distinguishable from the present case, but they do tend to support the rule which we distilled from Smith v. Town of Vinton and Rogers v. First Sewerage Board, namely, that a city is not estopped to deny the validity of a contract when its governing board does not know of the existence and the terms of the contract.

The doctrine of equitable estoppel is founded on good faith and is designed to prevent injustice under special circumstances. From the facts of the present case, we do not conclude that plaintiff acted in bad faith, but he has clearly not suffered an injustice requiring application of the doctrine of equitable estoppel. First, there is a serious question as to whether Daspit, who appears from the record to have been an experienced land speculator, justifiably relied on Mayor Karst’s authority to execute a binding.landfill contract. In State ex rel. Re-Lu, Inc. v. City of Kenner, 284 So.2d 866 (La.App. 4th Cir. 1973) the court held that unless the injured party was justified in his reliance on the conduct of city officials, estoppel was of no legal consequence. Second, Daspit sat idly by while the City operated the landfill for several months in a manner which, according to his expert witness, was not consistent with good sanitary landfill procedure. Notably, the letter agreement stated no minimum or maximum time period for utilization of the property and presumably either party could have terminated the contract at any time. Daspit never demanded that the City stop dumping garbage on his property and he did not file this suit until the City voluntarily discontinued its operations. He complained to May- or Karst, but did not bring the matter to the attention of the other commissioners. Third, Daspit knew that his property was subject to flooding and that the property had recently been rejected as a landfill site by the Sanitation Board on the grounds that it had inadequate cover material and poor drainage. Fourth, despite the testimony of real estate appraisers that the landfill operations reduced the market value of the land, a strong argument could be made that by raising the level of the property to prevent flooding, the City may have actually increased the value of the land. Considering all of these facts, it is clear that the present case does not fall within the exceptional class of cases where the doctrine of equitable estoppel should be applied.

Having concluded that no contract existed, and that the City is not es-topped to deny the agreement, we now address plaintiff’s alternative claim for recovery of damages under the theory of unjust enrichment or quantum meruit. The doctrine of unjust enrichment is based on Article 1965 of our Civil Code which states that no one ought to enrich himself at the expense of another. Courts have employed the doctrine to allow recovery where there is no contract but a municipality reaps benefits from another party. See Brock v. Town of Kentwood, 196 La. 318, 199 So. 133 (1940); Hinkle v. City of West Monroe, 196 La. 1078, 200 So. 468 (1941). In Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967) the Supreme Court listed the following elements necessary for recovery under unjust enrichment: (1) An enrichment. (2) An impoverishment. (3) A connection between the enrichment and the resulting impoverishment. (4) An absence of justification for the enrichment or impoverishment, and (5) The absence of any other remedy at law.

In the present case, the last three listed requirements are clearly satisfied. Moreover, the enrichment requirement is satisfied because the City acquired the use of the Daspit property as a waste disposal site without having to pay any rent or other fee. The impoverishment requirement, however, is not so easily satisfied by the facts of the present case. Any impoverishment to plaintiff would flow from his inability to use the land during the time it was utilized by the City as a landfill and from the reduced market value of the land after its use. Plaintiff failed to prove that he suffered any damage in loss or rent or otherwise as a result of his inability to use the land while it was used by the City. However, the City’s own expert real estate appraiser, Hab Monsur, testified that the market value of the property was reduced by $8,750 between the date of commencement of the City’s use of the property and the date that the City ceased its use of the property. On the basis of Monsur’s testimony, the trial judge awarded plaintiff general damages of $8,750. As we stated previously, it is difficult for us to perceive how low-lying property of no commercial value, which was formerly subject to periodic flooding, could be reduced in value by landfill operations which raised its elevation by four or five feet. Nevertheless, since the City’s own expert testified there was a reduction in value of $8,750, we find this was a reasonable evidentiary basis for the trial judge’s award, and was within his discretion. Accordingly, we affirm the court’s award of $8,750 in general damages. No issue is presented as to the amount allowed plaintiff for the fees of his experts. Therefore, we affirm the trial judge’s award of $1,900 to plaintiff to cover the fees of experts.

Because we concluded that no contract existed between Daspit and the City and that the City is not estopped, it is not necessary that we reach the issue of whether the sanitary landfill site was a “public work” under the provisions of the Public Bid Law (LSA-R.S. 38:2211), thus rendering the contract null and void for failure to follow the formalities of that statute.

For the reasons assigned, the judgment of the district court is affirmed. All costs are assessed against the City of Alexandria insofar as costs may be assessed against a municipality.

AFFIRMED.

GUIDRY, J., concurs and assigns written reasons.

GUIDRY, Judge,

concurring.

In my opinion the City is estopped to question the validity of the letter agreement between plaintiff and Mayor Karst. The majority relies heavily on the fact that the other two commissioners never actually saw the letter agreement. This appears to be so, however, the record leaves little doubt but that the commissioners were fully aware of all of the provisions of that agreement, i. e., that the Daspit property had been offered to the City gratuitously for use as a “sanitary landfill”; that this gratuitous use had been accepted; and, that the City could permit its use by others. This operation on plaintiff’s property became the subject of many discussions and resolutions of the Alexandria City Commission. Work crews, under the supervision of Commissioner O’Hearn Matthews, were transferred from the Department of Streets and Parks to the Sanitation Department in an attempt to ready the site for waste disposal. Roads into the landfill site were constructed under the supervision of Commissioner Matthews. The City authorized the purchase of a dragline in order to build trenches, this transaction being presumably negotiated by Commissioner Lanier, who served as the Commissioner of Finance and Utilities. In November of 1972 the Commissioners by resolution authorized the Rapides Parish Police Jury to use the property as a waste disposal area. The City actually used this site as a “sanitary landfill” during the remainder of the terms of office of Mayor Karst and Commissioners Matthews and Lanier. Can it be said that under these circumstances the City is not estopped to question the validity of this agreement simply because the other two commissioners never actually saw the letter of agreement, which admittedly contained nothing that they were unfamiliar with.

I would find that the City is estopped to question the validity of the agreement which I determine to be a loan for use agreement as defined in LSA-R.C.C. Articles 2893 et seq. I would further find that the City must respond in damages (LSA-R. C.C. Articles 2898 and 2899) for its failure to employ the procedures generally applicable to all sanitary landfills, i. e., proper trenching, compaction, cover, etc., following November of 1972, and I would fix such damages in the amount determined by the trial judge to be due.

Finally I would determine that a loan for use agreement does not come within the intendment of the Public Bid Law.

For these reasons I respectfully concur in the result reached by the majority.


author: HOOD, Judge.

text:
    CITY OF OAKDALE, Plaintiff-Appellant, v. Delores Navarre BENOIT, Defendant-Appellee.
    No. 5715.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 3, 1977.
    Writ Refused April 22, 1977.

      Perrell Fuselier, Oakdale, for plaintiff-appellant.
    Edwards, Stefanski & Barousse by J. Michael Stefanski, Crowley, for defendant-ap-pellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   HOOD, Judge.

The City of Oakdale instituted this suit seeking to enjoin defendant, Delores Navarre Benoit, from placing a mobile home on a lot owned by her in that city. It alleges that the location of the mobile home on that lot would violate the Zoning Ordinances of the City of Oakdale and would cause irreparable injury. Defendant answered and filed a reconventional demand praying, among other things, for judgment allowing her to locate the structure on that lot.

While the suit was pending, and before the trial was held, defendant moved the mobile home onto her lot. In view of that fact, the parties stipulated at the trial that the suit would be treated as an action for a declaratory judgment interpreting pertinent parts of the zoning ordinance, rather than as an action for injunctive relief.

After trial on the merits, judgment was rendered by the trial court in favor of Mrs. Benoit and against the City of Oakdale, decreeing that defendant “is not in violation of the Zoning Ordinances of the City of Oakdale by locating a structure known as Vista Villa 14 X 78 house trailer, as modified,” on the above lot. The City of Oak-dale appealed.

The sole issue presented is whether the structure which Mrs. Benoit placed on her lot is a “Trailer, Mobile Home,” as that term is used in the Zoning Ordinance of the City of Oakdale, and thus whether the locating, erecting, altering or use of that structure on that lot is prohibited by the provisions of the above zoning ordinance.

On November 5, 1973, Mrs. Benoit purchased a house trailer or mobile home from Southern Castles Mobile Homes, Inc., Alexandria, Louisiana, for the sum of $11,493.00. The mobile home purchased by her was 14 feet wide and 78 feet long. Immediately after purchasing it, she had it towed from Alexandria to a trailer park in Oakdale, and she and her two minor children resided in it for more than two years thereafter while it was located in that trailer park.

On September 26, 1975, defendant purchased three lots in the City of Oakdale, all of which are located in an area designated or zoned by the Zoning Ordinance of the City of Oakdale as an “A-2 Single-family (Low Density)” District of that city. Prior to purchasing those lots she was advised by an attorney that they might be in a zoned district in which the placing of a house trailer or a mobile home is prohibited. Mrs. Benoit thereupon contacted the Clerk of the City of Oakdale who informed her that the zoning restriction applied to the property which she was about to purchase. Defendant nevertheless purchased the above lots, and she then applied to the Board of Adjustment of the City of Oakdale for a change or variance of the zoning ordinance to permit her to locate her mobile home on the property which she had acquired. A hearing was held on her application, but the Board of Adjustment denied her request on December 11, 1975.

This suit was instituted by the City of Oakdale on December 15, 1975. The City alleges that defendant had announced her intention to move her mobile home on the property which she had purchased despite the provisions of the city’s zoning ordinance, and it prayed for judgment enjoining her from doing so. A temporary restraining order was issued on that date, but that order expired before a hearing was held, and on January 5, 1976, Mrs. Benoit moved her mobile home onto one of the lots which she had purchased.

This case was tried on its merits on January 21, 1976. Following that trial, the district judge found that “at the time this action was instituted and before the dwelling was moved to the present location, it was indeed a trailer, mobile home, within the definition of the zoning ordinance and, therefore, its location on the lot in question was proscribed.” He also found, however, that while the suit was pending the defendant removed the wheels, axles and the tongue from the trailer, and that she “sealed in the bottom with bricks or concrete.” He concluded that “that which presently exists on defendant’s lot is not a vehicle,” and that “it once was a vehicle but is no longer.” He accordingly rendered judgment declaring that defendant was not in violation of the zoning ordinance in placing and maintaining her mobile home on that property. The City of Oakdale has appealed from that judgment.

The Zoning Ordinance of the City of Oak-dale was adopted on April 26, 1973, pursuant to the provisions of LSA-R.S. 33:4721-4729. Under that ordinance, the city is divided into zoned districts and regulations are set out for each such district. The ordinance provides that “no building, structure or land shall hereafter be used or occupied, and no building or structure or part thereof shall hereafter be erected, constructed, reconstructed, moved, or structurally altered unless in conformity with all of the regulations herein specified for the district in which it is located.” See Section 1.3, Zoning Ordinance of the City of Oak-dale.

One of the zoned districts created by the ordinance is the “A-2 Single-family (Low Density) District.” The regulations pertaining to that type district are set out in Section 2.4 of that ordinance. Sub-Section 2.401 restricts the use of property in such a district to “dwellings,” and to some other purposes which clearly are not applicable here. Sub-Section 2.402 prohibits “all uses not permitted herein.” In Sub-Section 9.214, a “dwelling” is defined, in part, as follows:

“9.214 Dwelling: A building used entirely for residential purposes and shall not be construed to include trailers . .” (Emphasis added).

The ordinance thus prohibits the location, erection, alteration or use of “trailers” in an A-2 Single-family (Low Density) District.

The ordinance also creates another district, the “A-7 Mobile Home and Trailer Park District,” and the regulations pertaining to that type district are set out in Section 2.9. Sub-Section 2.901 provides that the permitted uses are: “Parking of mobile home type trailers and travel trailers when used as residences.” A mobile home and a travel trailer are defined in Sub-Sections 9.243 and 9.245, as follows:

“9.243 Trailer, Mobile Home: A vehicle equipped for use as a dwelling and designed to be hauled along a highway.” (Emphasis added).
“9.245 Trailer, Travel: A vehicular, portable structure built on a chassis designed as a temporary dwelling for travel, recreational, and vacation use with a body width not exceeding eight (8) feet and a body length not exceeding thirty-two (32) feet.”

The structure involved here is too large to be classified as a travel trailer, or a “Trailer, Travel,” as that term is used in Sub-Section 9.245. It, however, was unquestionably a mobile home, a trailer or a “Trailer, Mobile Home,” as those terms are defined in Sub-Section 9.243, when defendant acquired it and when she first moved it to the lot where it is now located. The issue presented here is whether defendant has modified that structure to such an extent that by the time of the trial it had ceased to be a mobile home or a trailer, and instead had become a single-family dwelling, as those terms are used in the ordinance.

The evidence shows that after the mobile home was moved to defendant’s newly-acquired lot on January 5, 1976, it was placed on concrete blocks and the wheels were removed from it. Defendant arranged to obtain electrical service to the trailer, but she has never had it connected with other public utilities, such as water, sewerage and gas. She indicates in her testimony that she has tried to have it connected with those utilities, but that the city officials would not permit her to obtain water connections.

Mrs. Benoit testified that when the mobile home was moved, onto her lot, she had it placed on concrete blocks and had the wheels removed as a part of her plan to make it a permanent installation. She stated that she intends to remove the tongue, or trailer hitch, from the frame of the trailer, but that up to the time of the trial that had not been done and she had taken no steps to have it removed. She also stated that she wants to “brick the front and sides” of the mobile home if she succeeds in getting it connected with sewerage and water. According to her testimony, she informed the Board of Adjustment of the City of Oakdale that she would do “whatever it took to make it a home.” The evidence shows that up to the time of the trial the-trailer hitch and axles had not been removed from the mobile home, and the front and sides of the structure had not been enclosed with bricks or with anything else.

At the time defendant purchased the mobile home, she filed an “Application for Certificate of Title and Truck Registration” with the Louisiana Department of Revenue, Motor Vehicle Division, pursuant to the Vehicle Certificate of Title Law (LSA-R.S. 32:707). In that application, and in the Certificate of Title of a Motor Vehicle which was issued to her pursuant thereto, the item which she acquired was described as a “Vista Villa Hse. Trl. 14 X 78,” 1974 model, Serial Number 1073-478-S5621. In connection with that purchase she paid sales taxes amounting to $574.65, and a title registration fee of $3.50.

On January 21, 1976, the day this case was tried, defendant recorded an affidavit in the Conveyance Records of Allen Parish, in which she stated “I am the owner of the following described mobile home designed for human habitation . . . ,” and that “the location for said mobile home is to be and remain a permanent location.” The mobile home was not described in that document, but the affidavit did contain a description of the lots of land on which it was located. In recording that affidavit, defendant apparently intended to convert the mobile home from a vehicle to an immovable, under the provisions of the Vehicle Certificate of Title Law. See LSA-R.S. 32:710N(2). She failed to comply with the requirements of that statute, however, and the recording of the affidavit thus did not have the intended effect. We do not feel that complying, or failing to comply, with the above statute determines the issue presented here, but we think it is significant that in the above affidavit, filed on the day of the trial, defendant described the structure at issue here as a “mobile home.”

The record contains several photographs of defendant’s mobile home at its present location. Defendant testified that those photographs correctly show that structure as it existed at the time of the trial. We have examined those photographs, and they appear to us to depict a typical large house trailer or mobile home, resting on concrete blocks with the wheels removed. The trailer and the lot on which it is located are neat and well kept. We believe, however, that anyone who views the structure in which defendant now lives would identify it, without question, as a house trailer or mobile home.

In Smith v. DeVincent, 322 So.2d 257 (La.App. 2 Cir. 1975), the defendants were enjoined from using as residences two mobile homes, which were located on property where a subdivision restriction prohibited the use of “trailers” for residential purposes. One of the mobile homes was 14 X 80 feet in size. It was resting on cinder blocks, and the springs, axles, wheels and tow bar had been removed from it. The structure was connected to utilities and to a septic tank, and was being used as a home by one of the defendants. The Court of Appeal, Second Circuit, held that the mobile home was a “trailer,” within the meaning of the subdivision restriction, and judgment thus was rendered permanently enjoining the owner from using it as a residence while it was located in that subdivision. The court said:

“We also note that mobile homes or house trailers have been on the market for several decades, and were then and are now available to rural lot owners. By whatever name, these homes convey to reasonable minds a rather elongated structure (10 to 14 feet in width by 40 to 80 feet in length), capable of being towed on the highways, with axles and wheels attached to the frame of the structure. The very name mobile or trailer conveys this meaning. The overall appearance, as distinguished from exterior decor, of one mobile home is not grossly dissimilar to another, and in the eyes of reasonable men, they all ‘look alike.’ We also take note that occasionally they may be immobilized on a particular location, but nonetheless, remain capable of being mobilized without too much effort and expense.”
* * * * * *
“We do not hold that a mobile home is a trailer under every circumstance. We hold only under the circumstances and under the subdivision regulations which we are required to interpret that the mobile homes of the defendants are trailers, against which there is no restriction as to remaining on the property but which, by restriction number four, may not be used temporarily or permanently as residences.”

We realize that a subdivision restriction, rather than a municipal zoning regulation, was involved in Smith v. DeVincent, supra. We nevertheless agree with the reasons assigned by the Second Circuit Court of Appeal in that case, and we feel that those reasons are applicable here. The court recognized in that case that conventional restrictions imposed on the use of property must be interpreted stricti juris, and that every doubt should be resolved in favor of the unencumbered use of such property. It nevertheless found, correctly we think, that the mobile homes involved there were “trailers,” and were not “residences,” as defined in the deed restrictions.

The law is settled that a zoning ordinance, being in derogation of rights of private ownership of property, must be strictly construed in favor of the property owner. East Baton Rouge Parish v. Bratcher, 244 So.2d 915 (La.App. 1 Cir. 1971); Rundell v. May, 258 So.2d 90 (La.App. 2 Cir. 1972). The ordinance should be enforced, however, when its provisions are clear and unambiguous, and where there are no other valid legal grounds to prevent its enforcement.

Article 14 of the Civil Code provides that the words of a law are to be understood in their “must usual signification,” and that in construing laws we are to consider the “general and popular use of the words.”

House trailers or mobile homes are used extensively in this area. We believe that most people are familiar with their appearance, and that the general and popular use of those words indicates to them a structure such as the one which defendant owns in this case. In our opinion most, if not all, of them would identify defendant's present residence as a house trailer or a mobile home, even though it is supported by concrete blocks and the wheels have been removed.

Sub-Section 9.243 of the Zoning Ordinance of the City of Oakdale defines a trailer, or a mobile home as “A vehicle equipped for use as a dwelling and designed to be hauled along a highway.” The structure involved here is equipped for use as a dwelling, and it is designed to be hauled along a highway. It is registered as a “House Trailer,” and thus as a vehicle, under the Vehicle Certificate of Title Law. It is equipped with a frame, axles, wheels and a trailer hitch, all of which enable it to be towed on a highway. It is narrow enough to permit it to be hauled on a public road, and it clearly was designed so that it could be towed from place to place. Although it is resting on concrete blocks now, we are convinced that the blocks can be removed and the wheels re-installed without much delay or difficulty, and that the mobile home thus can be easily put in condition “to be hauled along a highway.”

Our conclusion is that the zoning ordinance prohibits the locating, erecting, altering or use of a house trailer or mobile home, such as the one owned by defendant, in the area zoned or designated by that ordinance as an A-2 Single-family (Low Density) District.

For the reasons assigned, the judgment appealed from is reversed. Judgment is hereby rendered in favor of plaintiff City of Oakdale, and against defendant, Delores Navarre Benoit, (1) declaring that the Zoning Ordinance of the City of Oakdale prohibits the locating, erecting, altering or use of a house trailer or mobile home in an area zoned or designated by that ordinance as an A-2 Single-family (Low Density) District, (2) declaring that defendant’s Villa Vista House Trailer, 14 X 78 feet, Serial No. 1073-478-S5621, is a trailer, house trailer or mobile home, as those terms are defined in the above ordinance, and (3) decreeing that defendant, Delores Navarre Benoit, is in violation of the above zoning ordinance by locating, erecting, altering or using the above house trailer or mobile home in an area zoned or designated as an A-2 Single-family (Low Density) District. All costs of this suit and of this appeal are assessed to the defendant-appellee, Delores Navarre Benoit.

REVERSED AND RENDERED.