text:
    Mrs. Phyne C. LIUZZA v. James D. PANZER and Damien Kinchen.
    No. 7473.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.

      C. Monk Simons, III, New Orleans, for plaintiff-appellee.
    Arnold & Giepert, Melvin J. Giepert, New Orleans, for defendant-appellant, James D. Panzer.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   GULOTTA, Judge.

Defendant-buyer appeals from a judgment in the sum of $3,750.00, representing the amount of defendant’s deposit made in connection with the purchase of real property.

Plaintiff-seller and defendant-buyer entered into a buy and sell agreement for the sale of real property located in Hammond, Louisiana, at a price of $37,500.00. The agreement, dated April 27, 1973, was a standard real estate form contract and contained the usual provision that the sale ■ wap conditioned upon the ability of the purchaser to borrow $30,000.00 on the property at an interest rate not to exceed 9%. The agreement contained the additional provision that:

“Should purchaser or seller be unable to obtain the loan stipulated above within 60 days from acceptance hereof, this contract shall then become null and void and the broker is hereby authorized to return the purchaser’s deposit in full. Commitment by lender to make loan subject to approval of title shall constitute obtaining of loan.”

Both parties to the agreement were represented by realtors. The deposit was placed with plaintiff-seller’s agent.

Following the agreement, defendant-buyer applied to the Pontchatoula Homestead for the $30,000.00 loan. However, the homestead appraised the property at $32,-151.20, and would only lend defendant 80% of the appraisal price or approximately $25,000.00. Subsequent to the failure of the homestead to approve the $30,000.00 loan request, defendant, in a letter written to his real estate agent, suggested that the $37,500.00 purchase price be renegotiated and reduced to the sum of $35,000.00. Defendant-buyer’s real estate broker, by letter, submitted the offer for renegotiation to the seller, who apparently orally accepted the offer.

The trial judge, in written reasons, concluded the litigants verbally agreed to the reduced purchase price and that defendant made no effort to obtain a loan at the newly agreed figure. Accordingly, the trial judge concluded that defendant breached the purchase agreement.

On appeal, defendant contends the trial judge erred in concluding that a valid modification of the original purchase agreement was entered into. According to defendant, agreements for the purchase and sale of real estate must be in writing. Therefore, defendant contends that since the written offer by the purchaser to renegotiate the sale at a reduced price was not accepted in writing, no valid contract was made for the purchase of the real property at the reduced price. We agree.

Our jurisprudence is well settled that agreements to buy and sell real estate must be in writing to be binding and enforceable. Klotz v. Gertrude Gardner, Inc., 293 So.2d 601 (La.App. 4th Cir. 1974), writ refused, 296 So.2d 831 (La.1974). See LSA-C.C. arts. 2275, 2439, 2440 and 2462. In Torrey v. Simon-Torrey, Inc., 307 So.2d 569 (La.1974), the Louisiana Supreme Court stated that the rule “allowing proof by parol evidence of a subsequent agreement to modify or to revoke a written agreement, is not applicable to a case in which the agreement is one required by law to be in writing”. In the instant case, we conclude the written offer to purchase at a reduced price, verbally accepted by the seller, did not constitute a valid agreement to modify the original purchase agreement.

Based on his conclusion that defendant failed to make a good faith effort to obtain financing, the trial judge concluded that defendant breached the purchase agreement.

The agreement states that the contract shall become null and void in the event the purchaser or seller is unable to obtain the loan stipulated within 60 days from the date of the acceptance, i. e., April 27, 1973. Defendant’s real estate broker testified that defendant made no attempt to arrange a loan at any financial institution other than Pontchatoula Homestead. Defendant also stated that he made no attempts to obtain further financing because he had been advised that lending institutions would not lend in excess of 80% of appraised value.

It is well settled that a provision making a sale of real property contingent upon the purchaser’s obtaining a loan imposes a duty upon the purchaser to make a good faith application for the loan. Morrison v. Mioton, 163 La. 1065, 113 So. 456 (1927). Whether or not a party has acted in good faith depends on the facts and circumstances peculiar to each case.

In Brewster v. Yockey, 153 So.2d 489 (La.App. 4th Cir. 1963), our court concluded that a purchaser’s single verbal application to one homestead did not constitute a good faith attempt to obtain financing when another homestead was apparently ready, willing and able to make the loan. In the instant case as in Brewster, supra, there is evidence that financing was available from other lending agencies.

Mrs. Katie Wainwright, purchaser’s real estate broker, testified that had defendant sought to obtain financing from other lending institutions, he could have borrowed the $30,000.00 from other “agencies”. Wainwright stated that no other attempts to arrange financing were made because defendant did not care to proceed with the sale. This testimony was supported by Mr. Damien Kinchen, an expert in real estate appraisal, who worked with Paul Powell, the listing agent for the seller and who testified that he could obtain the financing from a mortgage company, but was told by Powell that the Panzers had called off the sale.

However, in Katz v. Chatelain, 321 So.2d 802 (La.App. 4th Cir. 1975), we held that a purchaser’s single application to a loan association constituted good faith where an appraisal was made by a central appraisal bureau and that appraisal was used by all of the homesteads in the place where the property was located, i. e., New Orleans. Under the circumstances in the Katz case, since all homesteads used the same appraisal, a denial of a loan by one homestead, based on that appraisal, necessarily would result in a denial of the loan by other homesteads. See also, Garlete v. Rodriguez, 126 So.2d 182 (La.App. 4th Cir. 1961). In the instant case, no evidence exists that Pontchatoula Homestead utilize the Central Appraisal Bureau in arriving at an appraisal figure.

We conclude, under the circumstances, as did the trial judge, that defendant did not make a good faith effort to obtain financing in accordance with the agreement.

Having so concluded, we turn to a determination of the seller’s duty to obtain financing under the terms of the agreement. As previously mentioned, the agreement places responsibility on the seller, as well as the purchaser, to obtain the loan. However, in the instant case, seller, in oral argument, contends that because defendant repudiated and refused to comply with the terms of the purchase agreement, the seller was relieved of any obligation to attempt to obtain a loan in the stipulated amount, and that under the circumstances, any such attempt to secure financing would have been vain and useless. We agree.

On May 21, 1973, within 30 days of the date of the agreement, the purchaser, in a letter addressed to his real estate agent, advised of the homestead’s failure to approve the loan in the sum of $30,000.00, and suggested a reduction of the purchase price to the sum of $35,000.00. This offer was communicated to seller’s agent on May 24. According to seller’s agent, the $35,000.00 offer was conveyed to the seller and orally accepted. The purchaser’s agent testified that on May 31, she was advised by the defendant-purchaser that he would not purchase the property for any price in excess of the appraised sum of $32,151.20. Thereafter, the purchaser’s agent, on May 31, 1973, in a letter addressed to seller’s agent, enclosed a cancellation agreement. In that letter, purchaser’s agent advised seller’s agent of defendant’s intention not to proceed any further with the sale. Defendant’s expressed intention to withdraw from the sale relieved plaintiff of the responsibility of obtaining financing.

When one contracting party announces he will not honor his agreement, the other party is not required to tender performance since to do so would be vain and useless. Swanola Club v. Tanner, 209 So.2d 173 (La.App. 4th Cir. 1968). See also 19 La.L.Rev. 315 (1959). Therefore, in accordance with the sanctions imposed by the purchase agreement, in the event of purchaser’s breach, the seller is entitled to obtain forfeiture of the deposit.

We reject plaintiff’s claim for attorney’s fees. No evidence was offered in support of this demand.

Because we find no error on the part of the trial judge when he concluded the purchaser failed to make a good faith effort to obtain a loan in the amount required by the agreement, defendant is not entitled to avail himself of any of the sanctions imposed by the agreement against the seller. It necessarily follows that the purchaser is not entitled to attorney’s fees or damages for inconvenience and mental anguish as claimed by him in a reconven-tional demand.

Accordingly, the judgment awarding plaintiff $3,750.00, the amount of the deposit, together with interest and costs, is affirmed.

AFFIRMED.

      . The court in Katz, supra, noted that the various homesteads operating in New Orleans did not maintain separate real estate committees of appraisers.

      . “ * * * In the event the purchaser fails to comply with this agreement within the time specified, the seller shall have the right to declare the deposit, ipso-facto, forfeited, without formality beyond tender of title to purchaser ; or the seller may demand specific performance. * * * ”
      “ a; * * Either party hereto who fails, for any reason whatsoever, to comply with the terms of this offer, if accepted, is obligated and agrees to pay the broker eommission and all fees and costs incurred in enforcing collection and damages.”

      . “ * * * In the event the seller fails to comply with this agreement within the time specified or for any other reason, the purchaser shall have the right either to demand the return of his deposit in full idus an equal amount to be paid as penalty by the seller; or the purchaser may demand specific performance, at his option. * * * ”


source: Caselaw Access Project

author: MORIAL, Judge.

license: Public Domain

text:
    Andrew J. BENNETT v. Jeri V. Johnston, wife of/and Franklin JOHNSTON.
    No. 7721.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.

      Midió & Lehmann, Rene Lehmann, New Orleans, for plaintiff-appellee.
    G. Michael Grosz, for defendants-appellants.
    Before LEMMON, GULOTTA and MORIAL, JJ.
   MORIAL, Judge.

This case is before us on plaintiff-appel-lee’s motion to dismiss this appeal filed on March 11, 1976. Defendants-appellants were originally given until March 30, 1976 to show cause by brief why this appeal should not be dismissed. The March 30 date was extended to May 7. Defendants-appellants have failed to reply.

The record and the affidavit of the deputy clerk of the district court in support of plaintiff-appellee’s motion to dismiss discloses the following chronology of events: defendants-appellants filed a timely appeal for which the court set a return date of July 2, 1975. Several extensions of the return date were obtained by a deputy clerk of the district court for the reason that the testimony had not been received from the court reporter. Prior to the extended return date of February 27, 1976, the completed transcript was delivered to the deputy clerk of court who completed the record on February 17, 1976. He notified the office of counsel for defendants-appellants via telephone on that date that the record was completed. The defendants-appellants’ office was informed of costs of preparation of the record and the filing fee required to lodge the appeal. Defendants-appellants paid the costs March 9, 1976 and the court then, without setting forth any cause, (See LSA-C.C.P. Article 2125) extended the previously expired return date to March 12, 1976. The record was lodged in this court on March 10, 1976.

A detailed discussion of the law applicable to plaintiff-appellee’s motion to dismiss is unnecessary.

In this case the extended return date expired on February 27, 1976. After that date the trial court was divested of any jurisdiction to extend further the return date. LSA-C.C.P. Article 2088, Louisiana Power & Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970). Accordingly, the trial court was without authority on March 9 to order a retroactive extension of the previously expired extended return date. The retroactive extension was without legal effect and, therefore, the appeal was not filed timely. See: Louisiana Power & Light Company v. Lasseigne, supra.

Furthermore, defendants-appellants’ failure to pay the required costs and fees within three days prior to the last legal extended return date of February 27, 1976 is imputable to them and fatal to their appeal. See LSA-C.C.P. Articles 2126, 2127 and 2161.

For the foregoing reasons the appeal is dismissed.

MOTION GRANTED.


author: PENROSE C. ST. AMANT, Judge Pro Tem.

text:
    Dale A. SMITH v. Vince VANCE and the Valiants, Inc.
    No. 7352.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Val K. Scheurich, III, Sapir, Bishop & Garcia, New Orleans, for Dale A. Smith, plaintiff-appellant.
    Ellis Jay Pailet, Metairie, for Vince Vance and the Valiants, Inc., defendant-appellee.
    Before GULOTTA and SCHOTT, JJ., and ST. AMANT, J. Pro Tem.
   PENROSE C. ST. AMANT, Judge Pro Tem.

Plaintiff appeals from a judgment of the trial court. denying his claim for alleged past due wages in the sum of $3,393.50. We affirm.

Although the record is not entirely clear on the circumstances, defendant, a theatrical-musical group, apparently initially employed plaintiff as a musician in March of 1973 at a fixed salary of $175.00 per week. The group at this time under the leadership of one James Viator was experiencing financial difficulties and plaintiff’s compensation was paid in an irregular manner from the outset.

Defendant’s financial condition failed to improve and in the summer of 1973 one Kenneth Brandt took over control of the finances and called a meeting of all musicians in the group. What transpired at this meeting is the subject of dispute and forms the crux of this litigation.

Defendant contends that plaintiff and the other musicians were given the alternative of accepting in lieu of a fixed weekly salary a new arrangement for compensation based upon a pro rata share of the net receipts accruing to the group after payment of essential expenses or of terminating their employment. Defendant further contends that by continuing in the group’s employment and by accepting payment in irregular amounts based upon the defendant’s ability to pay plaintiff acquiesced in this new arrangement and is bound by the terms thereof.

Plaintiff on the other hand contends that the agreement was simply to accept what funds were available with the understanding that any difference between the amount received and the sum of $175.00 per week was to accrue to him as back wages to be paid when the corporation obtained sufficient financial resources to do so.

The issue before us is therefore simply one of fact — did the plaintiff agree to a modification of the terms of his contract of employment by agreeing to accept a pro rata share of the net in lieu of a fixed weekly salary of $175.00? The trial court in brief reasons for judgment resolved this factual issue against the plaintiff by concluding that an agreement was reached to the effect “that the full amount of the draw would depend upon the funds being available”.

Plaintiff offered only his own testimony. Defendant offered the testimony of Kenneth Brandt and Andrew Franichivich.

The testimony is conflicting, and the trial court obviously resolved these conflicts in favor of the defendant and against the plaintiff who had the burden of proof and who offered no evidence to support his position. We apply the test for appellate review laid down in Canter v. Koehring Company, 283 So.2d 716 (La.1973);

“[Where] there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable eval-ations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.”

Finding no manifest error in the trial court’s decision we affirm its judgment at appellant’s cost.

AFFIRMED.


author: BEER, Judge.

text:
    N. E. ENGLAND ASSOCIATES, INC. v. Augustus H. DAVIS and D & G Maintenance Corp.
    No. 7464.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.

      Newman, Duggins, Drolla & Gamble, David D. Duggins and Cameron Gamble, New Orleans, for plaintiff-appellee.
    Anderson Council, New Orleans, for defendants-appellants.
    Before STOULIG, SCHOTT and BEER, JJ.
   BEER, Judge.

Plaintiff-appellee, N. E. England Associates, Inc. (hereafter, “England”), commenced this litigation as the unpaid holder of a note originally executed by defendant-appellant, Augustus Davis (hereafter, “Davis”), for the purpose of borrowing sufficient funds to meet premium payments due on certain insurance policies which required renewal in December, 1974. The renewal premiums totaled $1,348.91. A note was prepared for Davis to sign in favor of First Metropolitan Bank. The bank was to pay England and be reimbursed by Davis, who was to make a first payment of $337.22, and eight subsequent monthly installments of $131.14.

The coverage was, in fact, renewed but was, several months thereafter, cancelled by England when it became evident that Davis had defaulted. “Suit on a Note” was filed for the premium that had been earned from the date of renewal to the date of cancellation plus interest and attorneys’ fees as provided for in the note.

The trial court rendered judgment in favor of England for $531.98, the amount of premium earned as of the date of the cancellation of the policies, plus 8% interest and 20% attorneys’ fees.

Davis appeals, contending, we believe, correctly, that First Metropolitan Bank never negotiated the note to England, who, therefore, is not the proper party to institute suit to collect the unpaid note.

At the trial, Mr. Robert Gay, Vice President of England, testified that he prepared the note and sent it to Davis, who signed it and returned it to England. The policies were, then and there, renewed. However, the bank never advanced any funds, for the note was never negotiated to it even though it was signed and payable to the bank’s order. England simply held the note but, nevertheless, went ahead and advanced to the insurance companies the premium payments required to renew Davis’ policies. Davis, though called upon by England to pay, made no payment whatsoever, so England cancelled the renewals and, incorrectly, instituted this “Suit on a Note,” seeking reimbursement for the amount of premiums earned during the period when coverage was in effect prior to cancellation of the policies for non-payment.

Although the holder of an instrument payable to his order may transfer it for value without endorsing the instrument (see: LSA-R.S. 7:49 and, similarly, LSA-R.S. 10:3-201), mere possession of the un-endorsed instrument is not prima facie evidence of ownership. Thus, if the face of the instrument indicates title is in any person other than the possessor, the burden is upon the possessor to prove his ownership. He must prove a valid transfer or lose his right to sue on the instrument. See Richmond v. Bode, 216 So.2d 348 (La.App. 4th Cir., 1968). Since no valid transfer was alleged or proven, Davis’ contentions are technically correct.

However, a review of the record leads to the inescapable conclusion that the insurance coverage was, in fact, renewed by England on behalf of Davis at Davis’ request. The premiums, up to the date of concellation for non-payment, were, in fact, earned by the insurance companies and paid for in Davis’ behalf by England. We have no doubt that Davis could have insisted upon payment under the coverage afforded by the policies had a claim arisen prior to the cancellation for non-payment.

Consequently, even though we must reject England’s theory of recovery, the undisputed facts warrant an open account judgment in England’s favor since the record clearly supports a finding that the amount sued for is due. Our mandate is to- “render any judgment which is just, legal and proper upon the record on appeal.” See: LSA-C.C.P. Article 2164. As noted in the comments following same, “The purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued or passed on by the court below.”

Since recovery must be based upon the proof of an open account balance being due and owing, that portion of the trial court judgment awarding 8% interest and 20% attorneys’ fees provided for in the note must be rejected. Only interest at the legal rate may be recovered. LSA-C.C. Article 2924.

Accordingly, the judgment of the trial court is amended as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of N. E. England Associates, Inc. and against Augustus Davis and D & G Maintenance Corporation in the full sum of $531.98, plus legal interest from the date of judicial demand, and all costs.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that upon satisfaction of this judgment, the note executed by Augustus Davis, payable to the order of First Metropolitan Bank, be can-celled.

Thus amended, the judgment is affirmed. Each party shall bear his own costs of the appeal.

AMENDED AND AFFIRMED.

      . The coverage was in effect from December 21, 1974 until March 28, 1975.

      . Also note LSA-C.C.P. Article 1154.


author: GULOTTA, Judge.

text:
    Mabel DAVIS v. KATZ & BESTHOFF, INC. and Great American Insurance Company.
    No. 7509.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.

      Orlando G. Bendana, New Orleans, for plaintiff-appellee.
    Robert J. Young, Jr., and Edward L. Levert, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   GULOTTA, Judge.

Defendants appeal from a $4,500.00 general damage award for ill effects suffered when plaintiff ingested a prescription drug, prepared for another person and placed in a container bearing the other person’s name, mistakenly placed by employees of the defendant drugstore in a bag bearing plaintiff’s name. We affirm.

Defendants’ negligence is not disputed. However, defendants contend that plaintiff's claim is barred by contributory negligence and, alternatively, that the award for general damages is excessive. Plaintiff seeks an increase to the sum of $8,500.00.

According to defendants, the procedures and safety measures employed by them in filling prescriptions are designed to prevent a prescription drug being placed in a pill bottle labeled with one person’s name and then placed in a bag labeled with another person’s name. Defendants claim that both the bag and the prescription bottle bore the name of a person other than plaintiff, and that under the circumstances, plaintiff was contributorily negligent for failing to ascertain that the pill bottle was not labeled with her name.

In written reasons, the trial judge concluded that K&B had given plaintiff medication intended for another person; that plaintiff’s name appeared on the bag containing the prescription; and, that plaintiff consumed the drug. The record supports these factual conclusions.

Plaintiff underwent oral surgery, requiring sutures, on May 29, 1974. On that same day, she took her prescription for Percodan, an analgesic, to the drugstore for the purpose of having the prescription filled.

Plaintiff testified that upon hearing her name announced by a K&B employee, she went to the counter, picked up her prescription bag, noticed that her name, as well as her doctor’s name, was written on the bag, and paid for her prescription. A pharmacist at K&B, where plaintiff purchased the prescription, testified that although safety measures are employed, a possibility exists that medication prescribed for one person could be placed in the bag of another. Under the circumstances, we cannot say the trial judge erred in concluding that plaintiff received someone else’s prescription in a bag bearing her own name.

Dr. José Figueroa testified that the effect of the local anesthetic administered during the oral surgery would have caused a person to become drowsy and less aware of her surroundings. Plaintiff stated that by the time she returned home with the prescription, she was experiencing pain. According to Mabel Davis, she did not discontinue the use of the drug until three days thereafter, when her niece observed that the label on the prescription container bore the name of another person and contained the drug, Meticorten, a steroid. During the three-day period, plaintiff stated the pain persisted, and in accordance with instructions, she took the pills as needed. Plaintiff’s niece, who resided with plaintiff between May 30 and July 10 or 20, corroborated the fact that plaintiff was dizzy, feeling ill and incoherent during the several days following oral surgery.

With the above facts in mind, we turn to a consideration of the contributory negligence question. In that connection, we are confronted with the duty placed on plaintiff to inspect the label of a prescription container when the bag in which the container was placed bears the name of the person for whom the prescription is intended.

Contributory negligence is an affirmative defense and must be proved as any other fact. We cannot say that a purchaser of a prescription drug, under ordinary circumstances, does not have a duty placed upon him to inspect the label on the prescription container to ascertain whether the label bears the name of the person for whom the prescription was intended. However, in the instant case, and in view of plaintiff’s postoperative state, we cannot conclude that after once having observed her name on the prescription bag, plaintiff was contributorily negligent for failing to make a further inspection of the prescription container label.

We next consider the quantum question. Defendant complains that plaintiff did not prove by a preponderance of the evidence that she suffered ill effects from the Meticorten, or that the ill effects persisted for six months.

Subsequent to oral surgery, plaintiff suffered continued pain, swelling, dizziness, nausea and weakness in the legs. On June 1, 1974, while visiting Dr. Figueroa, plaintiff passed out in the doctor’s office. On that date, the doctor noted that Mabel Davis was drowsy and somewhat disoriented. On the following day, plaintiff went to the emergency room at Hotel Dieu and was administered Maalox and Fiorinal as needed for pain. She was discharged from the hospital on the same day.

Dr. Figueroa saw plaintiff on five additional occasions between the June 1, 1974 initial visit and the November 2, 1974 final visit. It was the doctor’s opinion that plaintiff’s continued complaints of weakness, nausea and hypertension were complications which could have been brought on by the medication. According to the doctor, the Meticorten could also have caused an increase in plaintiff’s blood pressure. Diuretics and tranquilizers were prescribed.

Plaintiff’s niece testified that during the period she resided with Mabel Davis, plaintiff appeared confused, incoherent and complained of leg weakness. According to the niece, plaintiff could hardly walk.

Considering the ill effects suffered by plaintiff, we conclude that the $4,500.00 general damage award is somewhat high, but not to the extent that the amount of the award constitutes an abuse of the much discretion rule. See Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803 (La.1974).

The judgment is affirmed.

AFFIRMED.

      . See LSA-C.C.P. art. 1005.


text:
    Inez JACKSON v. ED’S CAB COMPANY et al.
    No. 7517.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 1, 1976.

      Reed, Reed & Reed, Floyd J. Reed, New Orleans, for plaintiff-appellant.
    Christovich & Kearney, Robert E. Pey-ton, Hammett, Leake & Hammett, Craig R. Nelson, New Orleans, for defendants-ap-pellees.
    Before STOULIG, SCHOTT and BEER, JJ.
   BEER, Judge.

Defendant-appellees stipulated liability. The sole jury function performed in this case was the setting of the quantum of damages due plaintiff-appellant, Inez Jackson, as a result of alleged back injuries resulting from a motor vehicle accident. The jury awarded $3,500. The trial court rejected post trial efforts to increase the amount of the award, and this appeal resulted.

To a substantial extent, appellant’s allegations of error center around the cross-examination of Mrs. Jackson’s medical witness, Dr. Blaise Salatich. In addressing the principal issue complained of in connection with the examination of this controversial witness, able counsel for appellant challenges the validity of the trial court’s ruling which permitted defense counsel’s cross-examination of Salatich to include questions regarding previously published opinions of this and other appellate courts in which Salatich had participated as an expert witness. See Barrere v. Commercial Union Insurance Group, 195 So.2d 461 (La.App. 4th Cir., 1967).

In Barrere, this court determined that extracts from various published appellate opinions which had not been previously introduced in evidence did not properly form the basis for an attack on Salatich’s credibility and could not be read to the jury in closing argument. However, that opinion went on to state:

“Had counsel' questioned the witness (Dr. Salatich) concerning these opinions during the trial while he had the doctor on cross examination, a different question would have been presented for our determination. Generally, in argument to the jury counsel can comment on evidence introduced during the trial. However, we refrain from expressing any opinion concerning that question as the same is not before us.”

Here, that question is before us, and we proceed to deal with it as follows :

Expert witnesses, upon qualification and designation as such, are, then and there, granted an important and far reaching franchise not enjoyed by their lay counterparts: they are privileged and encouraged to express opinions based upon their expertise.

To be thus empowered, expert witnesses may first be obliged to respond to interrogation questioning their expertise. This may properly include a well grounded attempt to demonstrate the existence of bias or partiality. It properly follows that if, over a period of time and by reason of a course of conduct, an individual who seeks qualification as an expert has become sufficiently conspicuous or controversial as to have been, himself, the subject matter of prior judicial pronouncements, then those pronouncements may, under appropriate circumstances, form a basis for cross-examination of that witness regarding his qualifications.

In Barrere, supra, the court also stated:

“We hold no brief for Dr. Salatich. He has appeared as a witness in many cases coming before this court on appeal and we know from experience that he is quite likely to overemphasize and overstate the nature and extent of the plaintiff’s injuries.”

It is a matter of common judicial knowledge that a number of appellate opinions have dealt with the alleged qualifications (or lack thereof) of this witness. The existence of those decisions is well known to able trial counsel. Accordingly, when a litigant chooses, for whatever reason, to rely heavily upon the testimony of this doctor, that relying party may anticipate that prior judicial opinions regarding his objectivity and credibility may become material in an effort to qualify him as an expert witness. It was not error (nor should it have been a surprise to plaintiff’s counsel) for the trial court to permit defense counsel to cross-examine Dr. Sala-tich about his repeated failures to obtain board certification. Equivocation by Sala-tich on this important point could, properly, set the stage for referral to prior judicial pronouncements relative thereto. Upon such confrontation—while under cross-examination—Salatich clearly had the opportunity to either successfully explain away the challenge or not. The record compellingly demonstrates that such cross-examination was effective and meaningful not because it referred to previous opinions but because counsel’s questions regarding such matters precipitated an opportunity for the jury to hear Salatich embark upon explanatory forays which demonstrated his credibility (or lack thereof) to them. In this way, the members of the jury became the principal benefactors of a distinctive function of the adversary proceeding, for the questions and answers gave them added insight to perform that most important jury function—the determination of a witness’ credibility and the extent of reliance to be placed thereupon.

Able counsel for appellant additionally contends that the court erred in allowing “unreasonably long, overbroad, repetitive, argumentative and frequently irrelevant cross-examination” of Dr. Salatich. However, a painstaking consideration of the record indicates that, in almost every instance, it was the response of Dr. Salatich that was long, overbroad, repetitive, argumentative and frequently irrelevant—even when attempting to answer reasonably simple questions that sought brief and direct responses. The fact that this witness’ testimony was, at times, rambling, disjointed, irrelevant and immaterial was less attributable to defense counsel’s questions than to the witness himself.

Able counsel for appellant also details a substantial number of complaints relative to the conduct of the trial, the method of defense counsel’s examination of witnesses, the giving and refusing to give of various proposed jury charges and the lack of exercise of control by the trial court in allowing too much leeway in the closing argument of defense counsel. We find all of these contentions to be without merit and further find, upon a review of the record, that the verdict of the jury and the judgment of the district court is correct and that justice has been done. See Johnson v. Petit, 236 So.2d 304 (La.App. 4th Cir., 1970), and Shows v. Williamson, 256 So.2d 688 (La.App. 2nd Cir., 1972).

No useful purpose will be served in a detailed discussion of the injuries allegedly occasioned to the plaintiff. They are, to some extent, obscured by the expert medical testimony. It is sufficient to observe that neither her 79 visits to Dr. Salatich’s office, nor her various baths, heat treatments, etc. caused the jury to feel that plaintiff’s back had been seriously injured, entitling her to substantial recompense.

Appellant’s final major complaint is to the effect that the trial judge committed grave, reversible error by permitting the trial to extend into the evening hours as an alternative to being completed on the following day. Yet, the record clearly indicates that late in the afternoon on the day in question, the trial judge put the matter to the jury who, themselves, expressed the wish to finish the trial that day. There is nothing whatsoever in the record to signal any failure on the jury’s part as a result of this decision. For such useful purpose as it may serve, we approve the procedure followed by the trial judge. While some problem might be created in an instance where a jury was required to work late into the evening on a number of successive trial days in a complicated and many faceted trial, it is certainly no abuse of the trial court’s wide discretion to permit the jury to participate in making such a choice as was made here — particularly under the circumstances existent in this reasonably simple, generally uncomplicated and not lengthy trial.

The judgment of the Civil District Court for the Parish of Orleans is affirmed, at appellant’s cost.

AFFIRMED.


author:
MARVIN, Judge.
     BOLIN, Judge

text:
    Jake ALLO, Individually and on behalf of his minor son, Vic Allo, Plaintiffs-Appellants, v. Kassie B. JEFFERSON et al., Defendants-Appellees.
    No. 12904.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    En Banc. Rehearing Denied July 7, 1976.

    John F. Tooley, Jr., Gretna, Stephen M. Little, Metairie, Hargrove, Guyton, Ramey & Barlow by Thomas J. Wyatt, Shreveport, for plaintiffs-appellants.
    Blanchard, Walker, O’Quin & Walker by Jerald L. Perlman & Don Weir, Jr., Shreveport, for defendants-appellees.

      D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, for intervenor-appellee United States.
    Before BOLIN, PRICE and MARVIN, JJ-

       Bolin and Hall, JJ., both dissented from refusal to grant rehearing.

   MARVIN, Judge.

Plaintiff, Vic Alio, then a minor serving in the Army, was a guest passenger riding behind the operator of a motorcycle when the motorcycle and a truck collided on a rural highway between Bellvue and Benton about 200 feet east of the Bayou Bodcaw bridge in 1965. After a trial in 1974, and from a judgment rejecting his demands for personal injuries, Alio appeals. We affirm.

Plaintiff sued the driver of the truck and the truck owner’s liability insurer. Testimony concerning the liability issues was given by Alio, by the driver and by a guest passenger in the truck, and by an eyewitness (Miller) who was not otherwise involved in the collision. Miller was standing with still another person (Roberts) near the scene (“across the street” as he described it). The truck was a tractor-lowboy trailer of conventional type used in oil field work in this area. It was not loaded at the time of the accident, about 4:00 p. m. on a clear, dry October day. No other traffic was involved.

The highway near the scene is a blacktop state highway. Once it enters the Bayou Bodcaw bottom lands it is relatively straight, with shoulders limited to about 2 feet for a distance of approximately 400 feet approaching the bridge. The highway extends through the bottom lands as a “dump”, with water from the Bayou on each side of the highway, which the witnesses called “deep”. Both vehicles were proceeding westerly on the dump, approaching the bridge.

The motorcycle was on the left side and left shoulder of the highway, traveling at a speed of 15-20 mph as estimated by Alio in a deposition in 1967. Alio and his driver were riding in this fashion looking at turtles in the water to their left when the truck rounded the curve about 400 feet behind them. Jefferson and his guest passenger saw the motorcycle at this time and kept it under observation.

The truck was then traveling at about 40^45 mph but reduced its speed to an estimated 25-30 mph upon seeing the motorcycle. The posted speed limit was 60 mph. The truck at all times remained in its proper lane.

Allo’s memory of the accident at best, was sketchy. At least three times on cross-examination his testimony at the trial was impeached or his memory was otherwise refreshed from his 1967 deposition. He did not testify to any facts which lead us to conclude that the truck driver breached any duty towards the motorcycle riders.

After seeing the motorcycle, Jefferson blew the truck’s horn one or more times. The eyewitness Miller testified the horn blew several times, first when a distance of 30-40 yards separated the truck and motorcycle. The guest passenger and driver of the truck, and the eyewitness generally are in agreement that the motorcycle and truck were traveling at about the same speed, and were “about even with” or were “4-5 feet from” each other when the motorcycle veered almost perpendicularly from its left lane immediately into the front of the truck. The driver and passenger in the truck testified the driver then applied his brakes and steered from the right lane as far as he could go on the limited width of the road shoulder. The eyewitness corroborates this. The driver and passenger testified that when the motorcycle cut in front of the truck, the driver blew the truck horn. The truck driver’s attempt to avoid the accident was unsuccessful and the collision occurred.

From our review of Allo’s testimony, and particularly his admissions as to his statements in the 1967 deposition, Alio did not hear the truck horn until after the motorcycle verred into the path of the truck. The motorcycle driver did not testify and we can only infer his audio perception from the circumstances. Either he did not hear the horn or he reacted too late and without properly observing the source of the horn before veering into the path of the source. Under either inference, the motorcycle driver gave no indication beforehand that he was going to veer into the path of the truck, and we find that it was solely the negligence of the motorcycle driver which caused the accident. This finding results in the affirmance of the judgment below and makes it unnecessary that we agree with the trial court’s reasons for judgment or for us to make other findings as to contributory negligence and assumption of the risk by plaintiff, as did the trial court.

The trial court found the truck driver negligent in attempting to pass to the right of the motorcycle “upon seeing the dangerous position of the motorcycle ahead and the unusual conduct of the driver and passenger.” Under whatever theory or label, the defendant’s liability is founded upon his seeing or being under a duty of seeing the plaintiff and unreasonably acting or failing to act so as to cause the injury to the plaintiff. Considering all of the circumstances, the traffic conditions, nature and location of the highway, the motorcycle and its occupants remained in a relatively safe position from the time the truck driver saw them until the motorcycle drove into the path of the truck. The accident was not inevitable until the motorcycle drove almost perpendicularly from this relatively safe position into the path of the truck. The truck driver here had no indication that the motorcycle was not aware of the truck’s approach. During the entire time the motorcycle was being observed by the truck driver, the motorcycle remained far to the left side and shoulder of the road at a relatively slow rate of speed. The truck driver sounded his horn, slowed and purposely drove on his far right side of the road during the approach. We do not find that he breached any duty owed the motorcycle riders. See and compare: Daigre v. Schneider, 255 So.2d 206 (La.App. 1st Cir. 1971); Klibert v. Brewer, 301 So.2d 889 (La.App. 4th Cir. 1974), writ denied 305 So.2d 131 (La.1974); Motors Ins. Corp. v. Boling, 262 So.2d 156 (La.App. 3d Cir. 1972); Dixon v. Aetna Casualty Company, 256 So.2d 474 (La.App. 2d Cir. 1972). We need not agree with the trial court’s findings with respect to the motorcycle guest passenger.

For the reasons assigned, the judgment rejecting plaintiff’s demands is affirmed.

Affirmed.

BOLIN, J., dissents with written reasons.

BOLIN, Judge

(dissenting).

In his written reasons for judgment the trial judge stated:

“ . . . The plaintiff was a passenger on a motorcycle riding behind the driver, Mr. Lyle J. Brault. They were both engaged in looking for turtles in the ditches on each side of the road. At this point the road was dry, straight and level, it being a two-lane black-top road with ditches on each side. The plaintiff testified that Lyle J. Brault pointed to the ditch to the left and then drove the motorcycle into the left lane of the highway and reduced his speed to about 15 to 20 miles per hour and both were engaged in watching the ditch as they traveled down the highway. At this point he heard a horn blow and the driver swung back to the right side of the road where the collision resulted.
“The defendant, Kassie B. Jefferson, driving a trailer-truck headed the same direction as plaintiff was traveling’, saw the motorcycle ahead proceeding on the left side of the road. At this point he sounded the horn and continued on after slowing his speed. As defendant began to go past the motorcycle, the motorcycle suddenly cut back into the right hand lane and the collision resulted before he could avoid the accident and even though he again sounded his horn.
“Considering the above facts, it is my opinion that defendant, Kassie B. Jefferson, was negligent in attempting to pass to the right of the motorcycle upon seeing the dangerous position of the motorcycle ahead and the unusual conduct of the driver and passenger. It is also my opinion that the plaintiff, Vic Alio, was actively engaged with the driver in the distracting maneuver of looking into the ditches while on the wrong side of the road, that he heard defendant’s horn but failed to warn the driver of the motorcycle of that fact. Such independent negligence on the part of plaintiff was a contributing cause of the accident. Additionally, plaintiff assumed the risk of the consequences of such conduct.

I think the weight of the evidence supports the conclusion that the truck driver was negligent. However, I disagree with the finding of the lower court that Alio, the guest on the cycle to the rear of the driver, was contributorily negligent or assumed the risk. Assumption of risk and contributory negligence are special defenses which defendants have the burden of proving. There is no evidence in the record to support these special defenses.

Alio received serious injuries in the accident and I think the judgment should be reversed and plaintiff should be awarded a substantial sum for his personal injuries.

I respectfully dissent.

      . Also pertinent here is plaintiff’s contention that the doctrine of last clear chance or discovered peril should apply to impose liability.


author: BOLIN, Judge.

text:
    Joe Lee GRAHAM, Plaintiff-Appellee, v. Stewart B. MARSHALL et al., Defendants-Appellants.
    No. 12929.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    En Banc. Rehearing Denied July 7, 1976.

      Walter C. Dumas, Baton Rouge, for defendant-appellant, Stewart B. Marshall.
    David C. Lensing, Lake Providence, for defendant-appellee, Town of Lake Providence.
    James D. Caldwell, Tallulah, for plaintiff-appellee, Joe Lee Graham.
    Before BOLIN, HALL and JONES, JJ.
   BOLIN, Judge.

The sole issue on appeal is whether the mayor and the board of aldermen or the elected chief of police has the authority to hire and fire police officers in a municipality organized and governed by the provisions of the Lawrason Act, Louisiana Revised Statutes 33:321, et seq. The lower court held the power was vested in the mayor and board of aldermen. We affirm.

Defendant, Stewart Marshall, was elected Chief of Police of the Town of Lake Providence in May 1974, and took office on July 1, 1974. Several years earlier Joe Lee Graham had been hired as a police officer by the Mayor and Board of Aider-men. In the latter part of July 1974, Marshall suspended Graham from the exercise of his duties as a policeman for a period of one week. Graham obtained a hearing before the Mayor and Board of Aldermen which body instructed Marshall to reinstate Graham. Marshall’s refusal to comply with this order caused Graham to file mandamus proceedings seeking to be reinstated to the police force and to receive back pay for the period during which he was not allowed to work. Following trial, judgment was rendered for plaintiff as prayed for and Marshall appeals.

Marshall relies on Louisiana Revised Statutes 33:423 which vests the chief of police with “general responsibility for law enforcement in the municipality”. Marshall contends this “general responsibility” must include the authority to hire and fire police officers; otherwise, the chief of police could not maintain efficiency in his department or discipline the officers. In support of his argument, appellant cites Lentini v. City of Kenner, 252 La. 413, 211 So.2d 311 (1968).

In Lentini, the Supreme Court struck down an ordinance which vested the police captain with control of personnel assignments and department property. The court held the ordinance divested the chief of police of his inherent powers and was therefore null and void.

Although Lentini does not deal with the power to hire and fire employees, appellant contends the “inherent authority” to assign personnel recognized in Lentini necessarily includes the authority of Marshall as the chief of police to hire and fire employees.

We cannot agree with appellant’s contention. Louisiana Revised Statutes 33.401A(30) and (31) state the mayor and board of aldermen shall have the power:

(30) To provide for municipal officers other than those required by this Part who may be found necessary; to prescribe the duties and fix the compensation of all officers and employees, subject to any applicable civil service law; and to require bonds with sureties for the performance of duties from all officers and employees.
(31) To provide for the removal of officers and discharge of employees for misconduct or neglect of duty, subject to' any applicable civil service law.

These provisions clearly vest the mayor and board of aldermen with the sole power to hire and fire employees unless that power is validly delegated to the chief of police. Chapman v. Bordelon, 242 La. 637, 138 So.2d 1 (1962) and Clement v. City of Westwego, 250 So.2d 115 (La.App. 4th Cir. 1971), writ refused 259 La. 809, 253 So.2d 67 (1971).

This court recently upheld that portion of an ordinance which provided the “Chief of Police . . . shall have no authority to hire policemen . . . [hut] shall, however, make recommendations on the hiring of policemen to the Mayor and Board of Aldermen . . . ” We held this section of the ordinance adopted “what apparently is recognized procedure for the hiring of personnel by a municipality”. Cogswell v. Town of Logansport, 321 So.2d 774 (La.App. 2d Cir. 1975).

After this case arose, Louisiana Revised Statutes 33:402(4) was amended in 1975 as follows:

(4) To establish, regulate, and support night watch and police and define the duties thereof, subject to any applicable civil service law. However, in those municipalities governed by the provisions of R.S. 33:321 through R.S. 33:481, which have a chief of police elected by a majority of the qualified voters thereof, appointments of police personnel shall be made only upon the recommendation of the chief of police. Such nominations or recommendations are to be made irregardless [sic] of race, color, or creed. (Emphasis supplied)

The effect of the amendment is to restrict the theretofore plenary power of the mayor and board of aldermen in police employment matters. While the 1975 act is inapplicable to this case, it seems apparent the legislative intent was to take away a power which the mayor and board of aldermen previously had.

We hold that at the time of this suit the Mayor and Board of Aldermen of the Town of Lake Providence were vested with the sole power to hire and fire employees of the police department.

Judgment affirmed at appellant’s cost.


author: MARVIN, Judge.

text:
    Billy J. WOODWARD, Individually and as Administrator of the Estate of his minor son, Joseph E. Woodward, Plaintiff-Appellant, v. FIRST OF GEORGIA INSURANCE CO. et al., Defendants-Appellees.
    No. 12919.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    En Banc. Rehearing Denied July 7, 1976.

      Donald G. Kelly, Natchitoches, for plaintiff-appellant.
    John S. Stephens, Coushatta, and Gold, Hall, Hammill & Little by Henry Bruser, III, Alexandria, for defendants-appellees.
    Before PRICE, MARVIN and JONES, JJ-
   MARVIN, Judge.

Early one morning Joe Ed Woodward drove to the home of his classmate and friend, Ken Weems, to give him a ride to Hall Summit High School. Joe Ed, age 17, wore two pistols into Ken’s bedroom, a .38 caliber and a loaded .22 caliber single action revolver. Joe Ed either unloaded or attempted to unload the .22 pistol and placed both pistols on the bed. Ken, age 17, picked up the .22, spun the cylinder, half cocked the hammer and pulled, touched or hit the trigger. The pistol was loaded and it fired, injuring Joe Ed.

Suit was eventually brought for Joe Ed’s injuries and related expenses against Ken and his father and Mr. Weems’ insurer. A jury verdict under specific interrogatories found Ken Weems negligent and Joe Ed Woodward contributorily negligent so as to bar recovery. Plaintiff appeals. We affirm as to Ken’s negligence but reverse as to Joe Ed’s contributory negligence and award damages against all defendants.

A person using or examining a firearm must use extraordinary care in handling the weapon. See Normand v. Normand, 65 So.2d 914 (La.App.2d Cir. 1953). Ken breached his duty of care by handling the weapon without determining it was loaded or unloaded and by carelessly pointing it at Joe Ed and causing it to fire. The jury correctly found Ken Weems negligent.

Joe Ed’s contributory negligence vel non, is not as easily resolved. Both boys were hunters in the rural area in which they lived. They sometimes discussed and were somewhat experienced with firearms. Ken thought that the half-cocked hammer position was the safety position on this pistol as it is on some other pistols. Ken’s brother Gary, age 12, and Randall, age 16, were in the bedroom when the injury occurred. Joe Ed was conversing with Ken’s brothers and did not see Ken with the pistol. Joe Ed was about four feet away from Ken when the pistol fired within a few seconds after Ken picked it up and manipulated it.

Defendants contend the pistol was defective and that Joe Ed was negligent in bringing into Ken’s home a loaded and defective gun which would discharge from the half-cocked position, and in not warning Ken of these risks. We shall assume that the pistol was defective although the expert’s conclusions in this respect were contradicted under cross-examination and the expert’s factual basis for his conclusions was grossly inadequate according to our review of the testimony.

Under LSA-C.C. Art. 2317 and Loescher v. Parr, 324 So.2d 441 (La.1976), strict liability attaches when a defective thing in one person’s custody causes damage to another. Loescher recognized that the liability could be avoided (1) by showing that the damage was caused by the fault of the victim; (2) by showing that the damage was caused by the fault of a third person; or (3) by an irresistible force. Had the bullet injured one of Ken Weems’ brothers, Joe Ed’s liability as custodian of a defective thing would probably be absolved because of Ken’s lack of extraordinary care in handling the pistol— fault of a third person under Loescher as we interpret that case. The owner’s strict liability under LSA-C.C. Art. 2317 should not be extended to bar recovery by the owner who himself is injured by the defective thing when the fault of another and not the defect of the thing causes the injury.

The test of Joe Ed’s conduct as contributory negligence barring his recovery, is to be determined by the duty-risk analysis that Joe Ed’s conduct was a breach of duty to himself and constituted an unreasonable risk of harm to himself. See Hill v. Lundin and Associates, Inc., 260 La. 542, 256 So.2d 620 (1972) and 34 La.L.Rev. 1, “Reason versus Rule in Louisiana Tort Law: Dialogues on Hill v. Lundin and Associates, Inc." Our application of duty-risk analysis leads us to the “basic question” (to use Hill terminology as well):

Whether the risk of an injury from a defective and loaded gun which is carelessly handled by another so as to cause injury to the owner of the gun is within a rule of law which would prohibit the owner from unreasonably exposing the gun to the careless and uuinvited handling by a third person?

Our answer to the question, similarly propounded in Hill and there answered in the negative, is answered here in the negative, because (again using Hill terminology):

The record is devoid of any evidence tending to establish that plaintiff could have reasonably anticipated that a third person would carelessly handle the gun, or that such a “naked possibility” was an unreasonable risk of harm towards himself.

The record establishes that Ken and Joe Ed had hunted together for three or four years; that Ken was reasonably well versed and experienced in firearms, and that on one earlier occasion Ken had fired Joe Ed’s .22 caliber pistol in question. Ken had handled firearms, including these pistols, on other occasions in Joe Ed’s presence. Joe Ed had brought firearms into Ken’s home before and had carried firearms in his vehicle in which Ken often rode to school and elsewhere. Ken picked up the .22 without invitation from or comment to Joe Ed. We conclude there was no evidence which would have led Joe Ed to reasonably believe or anticipate that Ken would negligently and carelessly handle the pistol as he did. We reverse the jury verdict in this respect.

Quantum

The medical testimony shows that the bullet entered the thoracic area, punctured Joe Ed’s lung, and lodged behind the scapula. Upon admission to the hospital a tube was placed between the ribs and lung to evacuate blood and air from the thoracic cavity. Joe Ed remained in intensive care approximately forty-eight hours. After confinement in the hospital for approximately one week, Joe Ed was released to the care of his local physician. About a month after the gunshot a thoracentesis was performed to draw 450 c.c.’s of fluid from the thoracic cavity. At this time bullet fragments were removed from Joe Ed’s shoulder. About five weeks later Joe Ed was released from medical care and allowed to resume activities as he was able. The medical testimony indicates that Woodward suffered no permanent functional disability.

We believe a just and fair award of damages would be $6,500. Special damages were stipulated by counsel to be $1,-894.05. Judgment below is reversed, and for reasons stated:

IT IS ORDERED, ADJUDGED AND DECREED, that there be judgment against defendants, First of Georgia Insurance Company and Waymon M. Weems, individually and as administrator of the estate of his minor son, Ken Weems, in solido:

(A) In favor of Billy J. Woodward as administrator of the estate of his minor son, Joe Ed Woodward, for $6,500; and

(B) In favor of Billy J. Woodward for $1,894.05, with legal interest on all sums awarded from date of judicial demand, and at the cost of defendants, in solido, including the cost of this appeal.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED, that the expert witness fees, as they may be agreed to by the litigants or fixed by the lower court upon plaintiff’s rule be taxed as costs and paid by defendants.

Reversed and Remanded.

      . Defendants offered expert testimony regarding defects in the gun which was properly admitted over plaintiff’s objection that it was irrelevant.

      . Ken’s initial testimony on cross-examination during plaintiff’s case in chief and some of his pleadings to plaintiff’s petition indicate that Ken inserted one bullet into the .22 after he picked up the pistol.


text:
    Jerome W. JAHRMAN et al., Plaintiffs-Appellants, v. VALLEY AIR PARK, INC., et al., Defendants-Appellees.
    No. 12918.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    En Banc. Rehearing Denied July 7, 1976.

      Neblett, Führer & Broussard by Leonard Führer, Alexandria, for plaintiffs-appellants.
    Theus, Grisham, Davis & Leigh by R. L. Davis, Jr., and Edwin K. Theus, Jr., Monroe, for defendants-appellees.
    Before PRICE, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiffs’ ancestor was fatally injured while a passenger in the crash of a private airplane rented from defendant (Valley Air Park). The liability insurer of Valley Air Park, Gulf Insurance Company, was granted summary judgment dismissing plaintiffs’ suit for wrongful death against Gulf as the alleged insurer of the pilot of the plane. Plaintiffs appeal. We affirm.

The sole issue is whether the pilot, who rented the airplane in Colorado from Valley Air Park, was an “insured” under the policy of insurance in question. Valley Air Park is a Colorado corporation. The pilot (Q. K. Jahrman) was a Colorado resid-dent. Decedent and his heirs resided in Texas and in Colorado. The airplane crashed in Franklin Parish on a return flight from New Orleans to Colorado. Plaintiffs and the defendant insurer, under a joint stipulation of fact, both moved for summary judgment on the issue of liability coverage. Plaintiffs’ motion was denied.

The named insured is Valley Air Park. Section III of the policy contains these provisions :

“The unqualified word ‘insured’ . includes not only the named insured but also any person while using the aircraft . with the permission of the named insured. The provisions of this paragraph do not apply to:
“(e) Any person, other than the named insured, while the aircraft is subject to any rental or lease agreement.”

Plaintiffs contend the policy is ambiguous when other sections and endorsements such as those pertaining to “Use and Purposes,” “Coverage” and pilot qualifications are considered with the section defining “insured.” Each section, however, serves a different function and must be construed accordingly. For instance, the policy would not afford coverage even to Valley Air Park if the pilot flying the aircraft did not meet the qualifications listed in the policy as pilot qualifications. If the pilot did meet the policy pilot qualifications, he would still have to meet the requirements of other sections to be said to be an insured.

We agree with the trial court’s finding that no inconsistencies or ambiguities in the policy arise simply because different sections of the policy relate to “insureds,” “coverage,” “Use and Purposes” etc., each with its respective requirements and exclusions. One of the permitted uses of an aircraft under the policy is rental to others. Valley Air Park would be covered as to its liability but the person using the aircraft under a rental agreement would not be covered. The quoted provisions clearly state that they do not apply to any person, other than the named insured, while the aircraft is subject to any rental or lease.

Each counsel has cited cases of jurisdictions other than Louisiana and Colorado which enlighten us. In Churchman v. Ingram, 56 So.2d 297 (La.App. 2d Cir. 1952), we held that the rights of a party injured in Louisiana are to be governed by our law as against an automobile public liability insurer under an insurance policy written in Texas for a Texas resident, notwithstanding that as between the insured and the insurer our state would apply Texas law where the contract was written. See also our decision in Sutton v. Langley, 330 So.2d 321 (La.App. 2d Cir. 1976). In any event, the law of Colorado as to construction of insurance policies does not apear to differ from our established rules of construction of contracts, according to our research into general authorities. See 44 C.J.S., verbo “Insurance,” § 290 et seq. and Colorado cases cited therein.

“In the absence of ambiguity, it is the function of the court to construe and enforce the contract as written, even with respect to a restrictive provision and regardless of whether it works a hardship . . .” (footnotes omitted) ibid., at pp. 1140— 1142.

Finding no ambiguity, we hold that a pilot who rents the aircraft from the named insured under the subject policy, is not an “insured” under the policy because of the definition of insured.

At appellant’s cost, judgment is

AFFIRMED.

      . Melton v. Ranger Ins. Co., 515 S.W.2d 371 (Tex.App.1974) is an excellently reasoned case which was quoted by the trial court. It is not controlling, however, in our opinion, either in Louisiana or in Colorado.


author: JONES, Justice.

text:
    Paul M. BOUNDS, Plaintiff-Appellee, v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 12917.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    En Banc. Rehearing Denied July 7, 1976.

      Philip K. Jones, Norman L. Sisson, William W. Irwin, Jr., D. Ross Banister, Jerry F. Davis, W. Alex Harrison, Johnie E. Branch, Jr., Jonathan C. Harris, Alva Jones, Baton Rouge, for State of La., Dept, of Highways.
    Holloway, Baker, Culpepper & Brunson, Jonesboro, for appellee, Paul M. Bounds.
    Before PRICE, MARVIN and JONES, JI-
   JONES, Justice.

Plaintiff, Paul M. Bounds, was the owner of property along U. S. Highway 167 which was expropriated by the State of Louisiana, Department of Highways. The expropriation included Bounds’ home and necessitated relocation of his residence. This suit was instituted by Bounds against the State of Louisiana, Department of Highways (hereafter Department), for assistance under the Louisiana Relocation Assistance Act, LSA-R.S. 38:3101-3109.

By letter of March 28, 1974, Bounds was offered $15,075 for the property required for the highway project. The same letter also informed him that if he accepted the State’s offer in that amount he was entitled to a maximum of $4,470 under the Department’s Relocation Assistance Program in addition to certain other benefits. Mr. Bounds agreed to accept the assistance payment without knowing that the payment thereof would be subject to any conditions. A check for that amount was drawn payable to him. The receipt presented with the check concluded with the following sentence:

In the event the amount paid for the referenced parcel of land is litigated, I agree that the amount of the Replacement Housing Payment shall be credited against that portion of any final award which exceeds the original amount deposited in the court and will refund to the Department an amount equal to the amount of the excess.

Because Bounds did not agree with the State’s evaluation of his house and land and intended to litigate that question, but nevertheless felt that he was entitled to the full amount of the assistance offered, he refused to sign the receipt or accept the check.

After the Department refused unconditional payment, Bounds sued demanding the difference between the market value of the property taken in the expropriation and the reasonable cost of his replacement dwelling. The amount allegedly due was $10,000.

Defendants filed an exception of no cause of action contending that the Relocation Assistance Act creates no rights that can be enforced by property owners. See LSA-R.S. 38:3108, 3109. The Department also contended by way of peremptory exception, that plaintiff is not entitled to the requested relief because he did not exhaust his administrative remedies in accordance with the regulations promulgated by the Department. See LSA-R.S. 38:3107. An exception of no right of action was also filed by the Department.

Defendant answered in the nature of a general denial and further answered that a comparable replacement dwelling costing $21,400 had been located by the Department. The exceptions were referred to the merits. Following trial on the merits, judgment was rendered in favor of plaintiff and against the Department for $4,753.50. Defendant perfected this appeal.

We do not reach the merits of this case because there are administrative remedies provided which have not been utilized by plaintiff. Judicial relief will not be granted before all administrative remedies are exhausted. O’Meara v. Union Oil Company of California, 212 La. 745, 33 So. 2d 506 (1947); Porter v. O’Neal, 205 La. 445, 17 So.2d 622 (1944); State ex rel. Bert Leasing Corporation v. Donelon, 173 So.2d 24 (La.App., 4th Cir. 1965).

The Louisiana Relocation Assistance Act provides in LSA-R.S. 38:3107 as follows:

§ 3107. Delegation of authority to adopt rules and regulations
The agency head is authorized to adopt such rules and regulations as he deems necessary and appropriate to carry out provisions of this Chapter. The agency head is authorized and empowered to adopt all or any part of applicable federal rules and regulations which are necessary or desirable to implement this Chapter. Such rules and regulations may include, but not be limited to, provisions relating to:
(A) Payments authorized by this Chapter to assure that such payments shall be fair and reasonable and as uniform as possible.
(B) Prompt payment after a move to displaced persons who make proper application and are entitled to payment, or, in hardship cases, payment in advance.
(C) Moving expense allowances as provided for in R.S. 38:3104(A) and (B).
(D) Standards for decent, safe, and sanitary dwellings.
(E) Eligibility of displaced persons for relocation assistance payments, the procedure for such persons to claim such payments, and the amount thereof.
(F) Procedure for an aggrieved displaced person to have his determination of eligibility or amount of payment reviewed by the head of the agency.

Pursuant to this authorization, the Department had in effect in March of 1974, and thereafter, rules and regulations setting forth general instructions for implementing the policies of the assistance program.

A publication entitled Relocation Assistance Policy and Procedure sets forth the rules and regulations of the Department with respect to relocation assistance. It also delineates procedures for claims and appeals. Forms are provided for the various claims and for appeals.

Part VI, Supplemental Payments, provides in part:
Upon receipt of the Replacement Housing Payment Claim in the District Office the appropriate entry must be made on Form R/W-R.A. 3. The District Relocation Assistance Officer shall inspect the replacement housing to determine whether it meets the standards for decent, safe and sanitary housing. A copy of the relocatee’s claim (R/W R.A. 9, R/W R.A. 9A, or R/W R.A. 9B) must be made and filed along with a copy of the Inspection Report, R/W-R.A. 10, in the District Office relocation file. The District will prepare a Right of Way Voucher, Form 504c, attach the original of the relocatee’s claim, and submit the voucher to the Headquarter’s Office, for processing. The check for payment will in turn be transmitted to the District Office for delivery to the relocatee. Delivery of all checks in payment of claims for relocation assistance must be made by someone other than the person computing or making the offer or approving the claim. A receipt must be obtained and filed in the Relocation Assistance parcel file for each check delivered.
Note: If an owner-occupied parcel must be expropriated and the owner refuses to accept the agreement of Section D of Form R/W-R.A. 9 or R/W-R.A. 9A, payment of the supplemental payment will be withheld until judgment becomes final.
PART VIII, APPEALS, provides:
PART VIII APPEALS
Appeals must be submitted to the Department within 60 days after notification by the Department that the claim submitted by the relocatee has been rejected.
Each appeal claim should be submitted to the Department on Form R/W R.A. 11 and must be reviewed by the District Relocation Assistance Officer. He will indicate his recommendation for approval or disapproval of the appeal claim on its face, list the reasons therefor, date, sign, and transmit the appeal claim to the Headquarters Relocation Assistance Officer for further processing.
If the total claim is not approved by the Headquarters Relocation Officer, he shall forward the claim to the Right of Way Officer with his recommendations. If approved, the Right of Way Officer shall attach reasons for approval with the claim and return the claim to the Headquarters Relocation Assistance Officer for processing. If the Right of Way Officer does not approve the claim, he shall advise the claimant by letter giving the reason for denial of the claim and advise the claimant he may request a personal audience with headquarters pe-sonnel if desired.
The Right of Way Officer’s decision will be final.
Once an appeal claim has been received, the Relocation Assistance Officer shall advise the claimant, by letter, that he may appeal in person to the Headquarters Relocation Assistance Officer and the Right of Way Officer giving the address and telephone number of each.

The record in this case contains none of the required applications. The plaintiff frankly admits that these procedures were not followed. Plaintiff has not yet made proper application for relocation assistance. There has been no administrative determination of his eligibility for that assistance. The appeal and review procedures have not been invoked. Plaintiff has not exr hausted the possibilities for relief within the administrative system. For that reason, he is not entitled to judicial relief at this time.

For the foregoing reasons, the judgment of the lower court is reversed and the case is dismissed without prejudice to plaintiff’s right to proceed further in accordance with the views herein expressed.

Reversed and dismissed without prejudice.


author: PRICE, Judge.

text:
    George GOODEAUX et ux., Plaintiffs-Appellants, v. MARTIN HOSPITAL, INC., et al., Defendants-Appellees.
    No. 12914.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    En Banc. Rehearing Denied July 7, 1976.

      Martzell & Montero by Donna D. Fraiche, Frank E. Lamothe, III, New Orleans, for plaintiffs-appellants.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendants-appellees.
    Before PRICE, MARVIN and JONES, JJ-
   PRICE, Judge.

This is an appeal from the judgment rejecting the demands of George and Betty Goodeaux against Martin Hospital, Inc. and Dr. Roy V. Martin of Winnfield for damages for personal injuries and related expenses allegedly arising out of a fall sustained by Betty Goodeaux while a patient in the hospital on March 8, 1972. The action against Dr. Martin is in his alleged capacity as owner of the hospital and not under allegations relating to malpractice by a physician.

Plaintiffs allege the accident and resulting injury was caused by the fault of defendants’ employees in allowing soapy water to accumulate on the bathroom floor of the private room occupied by Mrs. Goo-deaux without properly warning her of this dangerous condition.

Defendant answered plaintiffs’ petition denying the acts of negligence alleged and alternatively pled the doctrine of contributory negligence as a bar to plaintiffs’ recovery.

Exceptions of prescription and no cause of action filed by defendants were referred to the merits and subsequently overruled by the trial court and are not an issue for review on this appeal.

A hysterectomy had been performed by Dr. Martin on Mrs. Goodeaux in the defendant hospital several weeks prior to the date of the accident sued on. She had returned to the hospital after discharge from her operation to receive further medical treatment related to the surgery and was occupying a private room with an adjoining private bath.

The facts surrounding Mrs. Goodeaux’s fall as found by the trial judge and the reasons given by him for rejecting plaintiffs’ demands are as follows:

Roxie Johnson, a nurses aid employed by Dr. Roy V. Martin at the hospital on March 8, 1972, was in the process of tending to Mrs. Goodeaux. While in the room that morning she emptied the water pitcher into the lavatory in the bathroom spilling some of the water on the bathroom floor. The water was not soapy water as alleged in plaintiffs’ petition. Mrs. Johnson did inform Mrs. Goodeaux that the water had been spilled and that she would be back to clean it up.
While Mrs. Johnson was out of the room Mrs. Goodeaux arose from the bed and went to the bathroom. Mrs. Goo-deaux, according to her own testimony, went to the bathroom, pulled up her gown and fell. After the fall, she discovered that her gown and slippers were wet. She got up and went back to her bed where the nurses found her when answering the emergency buzzer pressed by

Mrs. Goodeaux in the bathroom.

After the fall Mrs. Goodeaux told her husband that she started to sit on the commode and her feet slipped out from under her and that she did not see any water until after she fell, at which time she discovered that she had water on her gown.
On October 21, 1970, Dr. William Fox, III, an orthopedic surgeon in Shreveport, Louisiana, performed surgery on Mrs. Goodeaux by which he removed a disc at the D-4 level, right, and performed a negative L-5 exploration. On August 10, 1971, Dr. Fox removed a herniated disc at L-5 level and performed a negative exploration of the L-4 right. Mrs. Goodeaux as a result of the disability in her back and the surgery performed by Dr. Fox, had a history of slipping and falling, stating to Dr. Fox on October 22, 1971, that she had fallen and on two other occasions felt like she was going to fall.
There is no evidence before the Court that the water spilled by Mrs. Roxie Johnson on the bathroom floor caused or contributed to the fall of Mrs. Goodeaux. It was not soapy water as alleged in plaintiffs’ petition. It was water from a water pitcher that was spilled in front of a lavatory and not in front of the commode in the bathroom. Mrs. Goodeaux discovered that her gown was wet after she had fallen and assumed that the water had caused the fall. She did not testify that the water in any way caused or contributed to the fall which she sustained.
The burden of proof to establish their case by a preponderance of the evidence is upon plaintiffs in this case. That plaintiffs have failed to do .

On this appeal, plaintiffs complain that the trial judge was manifestly erroneous in his findings of fact and in concluding plaintiffs had not met their burden of proof in establishing negligence on the part of the hospital.

In Kilgore v. Argonaut Southwest Insurance Company, 216 So.2d 108 (La.App. 2nd Cir. 1968), we cited with approval the general rule of duty owed by a hospital from 41 C.J.S. Hospitals § 8(3), pp. 349 through 350 in pertinent part as follows :

“ . . . On the other hand, a private hospital is not an insurer of a patient’s safety, and the rules as to the care required are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen.”

Another rule of law which is applicable to the circumstances of this case is the duty of the owner of premises to an invitee to discover dangerous conditions which are reasonably discoverable and to adequately warn the invitee of the danger to protect him from harm. Cothern v. LaRocca, 255 La. 673, 232 So.2d 473 (1970).

The two principal findings of fact by the trial judge which plaintiffs contend are erroneous on this appeal are that plaintiffs did not establish by a preponderance of the evidence that water on the floor was the cause of the fall and that the nurse’s aide who spilled the water informed Mrs. Goo-deaux of this circumstance.

We find the evidence to support the finding of the trial judge that Mrs. Goodeaux was told by the hospital employee that water had been spilled on the bathroom floor, and we conclude the cause of her accident was her own failure to use due care for her safety under the known conditions.

The testimony of Roxie Johnson, the nurse’s aide, shows the amount of water spilled was very small and that it was near the lavatory. She further testified she immediately told Mrs. Goodeaux of the occurrence and stated she would be back in a few minutes with a mop to wipe it up. She contends Mrs. Goodeaux acknowledged her warning. Although Mrs. Goodeaux denies receiving a warning from Roxie Johnson, the trial judge found as a fact that it was given.

Our review of this finding must necessarily be in accord with the rule of appellate review of facts laid down by the Supreme Court in Canter v. Koehring Company, 283 So.2d 716 (La.1973) as follows:

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

Plaintiffs argue the medication being administered to Mrs. Goodeaux had caused her sensorium to be affected and this increased the duty of care on the part of the hospital employee to make certain she understood any warning that may have been given. Plaintiffs rely on the decision in Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974) as being analogous and controlling the instant case in this respect.

We do not find the mental condition of Mrs. Goodeaux to be sufficiently similar to the patient in Hunt to apply the rule adopted in that case. In Hunt the patient was a seventy-three-year-old woman who had previously suffered a stroke and was under heavy sedation from narcotics and phenobarbitals. She was described as confused and heavily sedated. Because of these circumstances, the court in Hunt held the hospital to a very high degree of care for the safety of the patient who did not have a clear sensorium.

Mrs. Goodeaux was a thirty-four-year-old woman who was fully ambulatory. The evidence does not show she was under any such sedation as involved in the Hunt' case. Nor does the evidence suggest she was incapable of hearing or heeding the information given her by Roxie Johnson.

Under the circumstances shown, we do not find that plaintiffs have shown that her accident and injury resulting therefrom was caused by the negligence of the defendant’s hospital or its employees.

In accord with the foregoing, the judgment appealed is affirmed at appellants’ costs.


text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. OLINKRAFT, INC., Defendant-Appellant.
    No. 12907.
    Court of Appeal of Louisiana, Second Circuit.
    May 24, 1976.
    En Banc. Rehearing Denied July 7, 1976.
    Shotwell, Brown & Sperry, by James H. Nappe.r, II, Monroe, for appellant.
    William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Bernard L. Malone, Jr., Baton Rouge, for appellee.
    Before, BOLIN, PRICE and MARVIN, JJ-
   PRICE, Judge.

In this proceeding the State of Louisiana through the Department of Highways seeks to expropriate under the “quick taking” statute a portion of the property belonging to Olinkraft, Inc. for the purpose of constructing a bridge and realigning a segment of Louisiana Highway 2 in Union Parish. An order of expropriation was signed allowing the expropriation in full ownership of defendant’s property upon the deposit into the registry of the court of the estimated just compensation in accord with LSA-R.S. 48:441-460, the “quick taking” statute. Defendant timely filed a motion to dismiss and vacate the order of expropriation on the following allegations:

(A) That Sections 441 to 460 of Title 48 of the Revised Statutes of 1950, inclusive as amended and reenacted are unconstitutional in that they violate the due process provisions of the Louisiana Constitution of 1974 and the United States Constitution;
(B) That the taking of property in full ownership, rather than a servitude of right of way, is not for a public purpose nor in the public interest;
(C) In the alternative and in the event it should be held that the taking in full ownership is a discretionary function of the plaintiff, that plaintiff has abused its discretion in taking in full ownership rather than a servitude of right of way; and
(D) That Mover is entitled to an adversary hearing and judicial determination of its rights under the Louisiana Constitution of 1974 and the United States Constitution.

After a hearing, the trial court rendered judgment rejecting defendant’s motion to dismiss.

On this devolutive appeal by defendant, the issues for review as formulated by the assignments of errors in brief are:

1) Whether the “quick taking” statute, LSA-R.S. 48:441-460 is in violation of [art. 1] § 4 of the Louisiana Constitution of 1974 and the Sth and 14th amendments of the U.S. Constitution in denying due process and permitting private property to be expropriated by ex parte order prior to a judicial hearing.
2) Alternatively, is the expropriation of property in full ownership rather than a servitude for a right-of-way within the requirement that the taking be for a public purpose.
3) In any event has the Department of Highways abused its discretion in determining the full ownership should be expropriated rather than a servitude.

The question relating to the violation of the 5th and 14th amendments of the U.S. Constitution by the ex parte proceedings of the “quick taking” statute has been resolved by the decision of the Supreme Court in State of Louisiana, Department of Highways v. Macaluso, 235 La. 1019, 106 So.2d 455 (1958).

In that decision the Louisiana Supreme Court found the “quick taking” procedure of the Louisiana expropriation statute not to offend the due process provisions of the U.S. Constitution, relying on Bragg v. Weaver, 251 U.S. 57, 40 S.Ct. 62, 64 L.Ed. 135 (1919), in which the U.S. Supreme Court upheld a state statute similar to the Louisiana expropriation statute. We quote in pertinent part the rationale of the Supreme Court in Bragg as follows:

“Where the intended use is public, the necessity and expediency of the taking may be determined by such agency and in such mode as the state may designate. They are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment. [Citations omitted]
“But it is essential to due process that the mode of determining the compensation be such as to afford the owner an opportunity to be heard. Among several admissible modes is that of causing the amount to be assessed by viewers, subject to an appeal to a court carrying with it a right to have the matter determined upon a full trial. [Citations omitted] And where this mode is adopted due process does not require that a hearing before the viewers be afforded, but is satisfied by the full hearing that may be obtained by exercising the right to appeal. [Citations omitted]
“* * * [I]t is settled by the decisions of this court that where adequate provision is made for the certain payment of the compensation without unreasonable delay the taking does not contravene due process of law in the sense of the Fourteenth Amendment merely because it precedes the ascertainment of what compensation is just. [Citations omitted]”

The remaining issue posed in defendant’s first assignment of error is whether the the “quick taking” provisions of LSA-R.S. 48:441-460 as amended by Act 30 of the Extra Session of 1974, violate art. 1, § 4 of the Louisiana Constitution of 1974.

Defendant contends the absence of a specific permission in the 1974 Constitution for the State to take private property for a highway purpose prior to a judicial hearing, as was provided by the 1948 amendment to the 1921 Constitution, (Article 6 § 19.1), precludes the State from using the “quick taking” method. Defendant primarily relies on certain expressions of the Supreme Court in State v. Macaluso, supra, in support of its position.

Macaluso did contain language indicating the ex parte taking prior to a judicial hearing would be violative of the due process clause of the State Constitution of 1921 without the specific authority granted by Article 6 § 19.1. It should be noted, however, that the provisions of the 1921 Constitution relating to due process differs from that contained in the 1974 Constitution. The prior Constitution in Article 1 § 2 provided:

“No person shall be deprived of life, liberty or property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.” [Emphasis supplied]

The declaration of rights in Article 1 of the 1974 Constitution (analogous to the Bill of Rights in Article 1 of the 1921 document) contains in addition to the due process declaration of § 2, a more explicit delineation of the rights relating to property as follows:

Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss. No business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with a government enterprise. However, a municipality may expropriate a utility within its jurisdiction. Personal effects, other than contraband, shall never be taken, [emphasis supplied]

It is significant that the due process clause of the 1921 Constitution (Article 1 § 2) prohibited the taking of private property for public purposes until “after” payment of just compensation. The rights to property enumerated in § 4 of Article 1 of the 1974 Constitution permit the taking of private property for public purposes “with just compensation paid to the owner or into court for his benefit.” We also think the subjection of the right to own property to “reasonable statutory restrictions and the reasonable exercise of the police power” was intended to grant authority for the legislature to permit the taking of property by ex parte order prior to hearing when it appears reasonable. The method of taking provided for in LSA-R.S. 48:441-460 is in our opinion a reasonable statutory restriction on the right to own property. That this was the intent of the delegates to the constitutional convention in adopting this language in § 4 of Article 1 is shown by examination of the discussion and debate on this section as reflected by the official journal of the proceedings of the convention on its 39th day. On at least two occasions, the Supreme Court has made reference to the official proceedings of the constitutional convention in resolving issues relating to interpretation of its provisions. See Gonzales v. Xerox Corporation, 320 So.2d 163, 165, footnote 1 (La.1975), and Hainkel v. Henry, 313 So.2d 577, 580 (La.1975).

We conclude the “quick taking” provisions of LSA-R.S. 48:441 do not violate the Louisiana Constitution of 1974.

The remaining assignments of error relate to whether the taking of the property in full fee as opposed to a servitude is within the requirement that the taking be for a public purpose and whether the Department of Highways was arbitrary in determining the need of full ownership under the circumstances presented in this case. Defendant contends a servitude of right-of-way is all that is necessary for the proposed construction and that it is not in the public interest to take from it the full fee ownership of the subject property.

The Supreme Court in the case of State of Louisiana, Department of Highways v. Guidry, 240 La. 516, 124 So.2d 531 (1960) held the Department of Highways has the discretion to determine whether or not full ownership of expropriated land is to be required. This case apparently remains the law on this issue.

We further find the evidence presented shows the taking in full ownership was for a public purpose and that the Department of Highways was not arbitrary in making such a determination.

The testimony shows the Department of Highways had adopted in recent years a uniform policy of expropriating in fee rather than acquiring a servitude for highway construction. The principal reason shown for this policy is to allow the Department to have full authority to permit the installation of utilities within the highway right-of-way. This prevents delay in highway construction and is conducive to effective control of the highway corridor. Other benefits are also shown to accrue to the public by having the utilities readily available for lighting and other ancillary highway purposes.

In accord with the foregoing, the judgment appealed is affirmed at appellant’s costs.

      . Article 6 § 19.1 of the Louisiana Constitution of 1921, provided as follows:
      “The Legislature shall have authority to authority to authorize the taking of property for highway purposes by orders rendered ex parte in expropriation suits prior to judgment therein provided that provision be made for deposit before such taking with a court officer for the amount of appraisals of the property so taken and damages to which the owner thereof may be entitled, if any, _ which appraisals may be made in such manner as may be provided by law either before or after institution of suit, and need not be by judicially appointed appraisers.”