author: BURGESS, Judge.

text:
    Gary Lavelle MAINES, Plaintiff-Appellee, v. HOME INSURANCE COMPANY et al., Defendants-Appellants.
    No. 12724.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      Theus, Grisham, Davis & Leigh by J. Michael Hart, Monroe, for defendants-appellants.
    Kelly, Seaman & Ware by Donald G. Kelly, Natchitoches, for plaintiff-appellee.
    Before PRICE, HALL and BURGESS, JJ-
   BURGESS, Judge.

Gary Lavelle Maines filed this suit against his employer, H. G. Quinn, and the latter’s workmen’s compensation insurer, Home Insurance Company, seeking benefits for total and permanent disability allegedly resulting from injuries sustained by him during the course and scope of his employment, medical expenses, expert witness fees, and attorney’s fees and penalties for failure to continue workmen’s compensation payments after January, 1974. The lower court rendered judgment in favor of Maines and against defendants in solido for total and permanent disability benefits, medical expenses, expert witness fees and costs, but denied penalties and attorney’s fees. From this judgment defendants appeal. Since plaintiff has neither appealed nor answered the appeal the issue of attorney’s fees and penalties is not before us. We affirm the judgment of the lower court.

The factual basis of this proceeding arises out of an automobile accident that occurred on October 11, 1973, while plaintiff was employed in a seismographic crew by defendant Quinn. Plaintiff suffered numerous personal injuries in the accident. Prior to trial in the district court defendants stipulated plaintiff was engaged within the course and scope of his employment; however, defendants filed a motion for new trial on the basis of newly discovered evidence, contending that subsequent to the trial Maines filed a separate tort suit against the driver of the vehicle in which he was riding, claiming that he was not within the course and scope of his employment at the time of the accident in question. The court minutes reflect this motion was denied. Preliminarily, and prior to disposition of the merits on appeal, we find that since defendants stipulated before trial that plaintiff was in the course and scope of his employment when he was injured, the allegations made in a separate tort suit did not constitute newly discovered evidence which would warrant the granting of the motion for a new trial.

Defendants admitted that plaintiff was disabled within the meaning of the workmen’s compensation law of the State of Louisiana, until January, 1974, and they have paid workmen’s compensation benefits through the first week of January, 1974. However, they contend that plaintiff had no compensable disability after that time. There is no dispute that plaintiff would be entitled to workmen’s compensation benefits at the rate of $65.00 per week if he is found to be totally and permanently disabled.

We have the benefit of the excellent written reasons of the trial judge in which he comprehensively detailed the injuries and medical reports and evaluations of all the treating and examining physicians. From our study of the transcript we conclude the trial judge’s reasons and judgment are amply supported by the record. Accordingly, we adopt his reasons as our opinion:

“Immediately after the automobile accident of October 11, 1973, plaintiff was confined to Winnfield General Hospital in Winnfield, Louisiana, during which time he was treated by Dr. John T. Mosley, a general practitioner. Dr. Mosley continued to treat plaintiff after his discharge from Winnfield General Hospital until January 11, 1974, at which time Dr. Mosley was of the opinion that plaintiff was able to return to work doing heavy manual labor without substantial pain. However, due to plaintiff’s complaints of headaches and dizziness, Dr. Mosley referred plaintiff to Dr. Frederick Boykin, a neurosurgeon of Shreveport, Louisiana.
“Dr. Mosley testified that as a result of the automobile accident, plaintiff sustained a concussion, together with a laceration of five to six inches in length over the left eye and chin, bruises and brush burns on the legs, an incomplete fracture of the right scapula, and fractures of both mandibles. Dr. Mosley' ref erred plaintiff to Dr. Bruce Phillips, an oral surgeon of Alexandria, Louisiana, for repair of the fractured mandibles.
“Under treatment by Dr. Phillips, the fracture of the mandibles were healed without significant complaint. However, during his visits to Dr. Phillips, plaintiff complained of pain in the lower back and Dr. Phillips referred him to Dr. Ray J. Buerlot, Jr., an orthopedic surgeon of Alexandria, for examination.
“The initial examination of plaintiff by Dr. Buerlot was on November 12, 1973, at which time plaintiff was complaining of pain to the right shoulder, with pain into the upper extremity to the elbow, pains in the left rib cage, pains in the left calf, pains in the low back and some pains in the left lower leg. Following this examination, Dr. Buerlot placed plaintiff on two kinds of oral medication, one of which was a muscle relaxant and the other an anti-inflammatory agent. He was instructed to return for further evaluation within two weeks but did not return until December 17, 1973.
“At the time of examination on December 17, 1973, Dr. Buerlot testified as follows :
“ ‘On December 17, he stated that his ribs and his shoulder were pain free. He was still complaining of some discomfort in his back. Another back examination was performed. The back examination at this time was essentially normal as far as his motion, sensation and reflexes and so forth. Measurements were essentially the same. Again, spot films were taken, where the previous avulsion factor was noted, and it was unchanged and there appeared to be some healing in the area. It was felt at this time that he was far enough along following his injury that he could start on very active range of motion, exercises, and was to return again in two to three weeks.’
“Plaintiff did not return to see Dr.' Buerlot following the appointment of December 17, 1973. Dr. Buerlot testified that he suggested at that time that plaintiff return to work, that he saw nothing that would prohibit plaintiff from carrying on his normal physical work activity, that plaintiff was showing an expected and; usual recovery from his injuries and ‘that he was to the point that even though he was still having some complaints of soreness, that it was safe, medically, for him to begin active activities.’ Dr. Buerlot further testified that he did not find anything indicating permanent residual disability in this man as a result of his examination of December 17, 1973.
“During cross examination, Dr. Buerlot qualified his opinion as to his ability to return to work on December 17, 1973, by testifying as follows:
“ ‘I don’t think that he could do the heavier things that you mentioned, no. I think as he began to increase his activity within a few more weeks he probably or possibly would have been, and of course, this was the reason for the statement to return in two to three weeks to see how he was doing. He would have probably have some discomfort when he returned to work, at any stage. As any of us would when we start working muscles hard again that have been inactive over a period of eight to twelve weeks or what have you. And until he had restored all of his muscle tone, there would be some soreness and some difficulty in performing a full day’s work and all. But as he progressed, it would get easier and easier for him. I think he could ultimately, through exercise and activity, whether it be a program of exercises, weights or bending or exercises, or beginning to work back on his job, could restore himself back to full capacity.’
“Dr. Buerlot testified that in his opinion as of December 17, 1973, it would take from four to six weeks for plaintiff to be able to work pain free while doing the same duties and carrying out the same responsibilities that had been mentioned to him in connection with plaintiff’s job.
“Dr. Frederick Boykin examined plaintiff on January 16, 1974. At that time plaintiff’s chief complaints were severe headaches, dizziness, blurred vision in the left eye and numbness over a scar in the left temple. This examination was limited to neurological problems. On examination, Dr. Boykin found that the plaintiff had anesthesia for pain and light touch in the distribution of the left supraorbital nerve which is actually in the frontal area of the scalp. He also found that plaintiff had some reduction of sensation over the mental division over the right mandibular nerve which is at the point of the chin on the right side. He was of the opinion that the laceration to plaintiff’s left frontal region severed the first branch or supraorbi-tal branch of the trigeminal nerve on the left. He was of the further opinion that the fracture of the mandible, impaired the mandibular component, or the mental branch. He testified that it would probably take twelve to fourteen months for the supraorbital branch of the trigeminal nerve to regenerate itself if no problems developed with scar tissue. During the time of its regeneration, a person suffering with such injury can have peculiar feelings, par-asthesias, pain, burning, or stinging sensation. He felt that the chances were good for the recovery of the right mandible nerve which supplies half of the lower lip and the gums on that side. Because of the damage to the mandibular nerve, plaintiff had sustained a loss of sensation in that particular area for which the healing process would take twelve to fourteen months. There is also a possibility that the nerve will not regenerate in which event further medical attention would be required. Dr. Boykin found no neurological explanation for the complaint of blurred vision but did not rule out possible injury to the eye as that examination would have to be performed by an ophthalmologist. He found that the dizziness and headaches are the usual consequences of a cerebral concussion as suffered by plaintiff. These complaints will normally subside in a period of time which Dr. Boykin thought likely in this case as plaintiff did not have any disturbance of his equilibrium or his co-ordination. Dr. Boykin thought that plaintiff was employable as of January 15, 1974, and able to engage in manual labor from a neurological standpoint. However, he could not say that plaintiff could engage in manual labor without pain as plaintiff would still continue to have headaches which would not necessarily be affected by work. He stated that plaintiff had the physical attributes, the ability to return to work. But he could not say that when plaintiff returns to work he would not still have some headaches or still some complaints of dizziness.
“Dr. Fred Willis, a general practitioner of Coushatta, Louisiana, saw plaintiff on several occasions, the first of which was on January 30, 1974. He stated that at the time of his first examination, plaintiff complained of shoulder pain, severe back pain, stiffness of his shoulder, which limited his activity, as far as his range of motion and function of his right arm. After examination, Dr. Willis found that the right shoulder had a decreased range of motion, and there was a moderate amount of muscle spasm in the back with no tenderness. He also found ‘chronic decreased straight leg raising and decreased range of motion of his trunk and lumbo sacral spine.’ He prescribed analgesics and a muscle relaxant at that time. He later saw plaintiff on February 8, 1974, at which time his condition was basically unchanged. From the statement attached to his deposition, it appears that Dr. Willis saw plaintiff on fourteen different occasions between January 30, 1974, and July 10, 1974. After the visit of February 18, 1974, Dr. Willis concluded that plaintiff had a chronic lumbo-sacral type of injury, which would be persistent as far as his activity was concerned, as well as limited range of motion of his right shoulder which was secondary to his injury. As a result of these examinations and treatment, Dr. Willis was of the opinion that plaintiff was unable to perform heavy duty or manual labor continuously from the time of the first visit in January until the last time that he saw him.
“At the time of the first examination on January 30, 1974, Dr. Willis referred plaintiff to Dr. W. S. Bundrick, an orthopedic surgeon in Shreveport, Louisiana. Dr. Bundrick examined plaintiff on February 1, 1974. Contrary to the findings of Dr. Willis, Dr. Bundrick .found that plaintiff had full range of motion in the right shoulder although he had some pain at full abduction and external rotation. Dr. Bun-drick further found that he had some tenderness along the anterior axillary line along the eighth rib and some tenderness in the paraspinous muscles together with minimal tenderness about the iliolumbar ligaments in the back on both the right and left sides. Dr. Bundrick did not detect any muscle spasm or tightness present on this examination. He further found that straight leg raising tests produced pain at ninety degrees bilaterally in the supine position but did not produce pain when the patient was in a sitting position. He further found some tenderness over the lateral or outer aspect of the left thigh but no soft tissue swelling. He also found minimal tenderness over the outer aspect of the knee. The only abnormality shown by x-rays taken by Dr. Bundrick was a healing fracture to the neck of the scapula and a residual epiphysitis of the fourth lumbar vertebra, to which he attached no special significance. Dr. Bundrick’s impression was a healing fracture of the right scapula, a healing fracture of the left eighth rib, resolving contusion of the left thigh, lum-brosacral myoligamentous strain and no evidence of a herniated disc. He stated that he thought plaintiff was improving at the time of the examination, that some of his back pain was due to decreased tone in the back and abdominal muscles and this was the reason he put him on some exercises.
“Dr. Bundrick stated that plaintiff would probably have some pain with work which required excessive bending and stooping. But as far as the mild lumbrosacral sprain, he could attempt it. He thought that plaintiff would have pain upon repeated bending and, therefore, recommended a course of Williams exercises to strengthen his hack and abdominal muscles. Dr. Bun-drick further stated:
“ ‘I believe at this time he could have returned, I don’t say that he would be pain free, without some aching in his back, or whether this would prevent him from doing his work. I couldn’t definitely say that.’
“On cross examination, Dr. Bundrick was asked the following question:
“ ‘Q. Then it is a fair statement to say that when you saw him, on February 1, you felt that he could work, but naturally, with some discomfort, you felt that if he went on the program of exercises recommended by you, that some three or four months after that he would work without significant discomfort?’
“Dr. Bundrick answered:
“ ‘A. Yes, I would think so.’
“At the time of the accident, plaintiff was employed by Mr. H. G. Quinn in a seismograph crew. Mr. Quinn testified that plaintiff worked the jugline while employed by him. To perform his duties, plaintiff was required to carry the phone cable weighing 56 pounds and the geo-phones referred to as ‘jugs’, and wire which weighed 8 pounds. Lay witnesses produced by plaintiff testified that plaintiff’s back became stiff and painful after prolonged sitting, his pain and complaints increased after bending, stooping or attempting to lift objects, that he had attempted to perform pulpwood work on one occasion since the accident and was unable to, and also had attempted to assist his wife in running a paper route in an automobile but was unable to continue.
“Plaintiff has filed a tort suit against Eugene Freeman and others as a result of the accident herein sued upon. Mr. Ernest Freeman, the father of Eugene Freeman, testified that he had talked to plaintiff about hauling wood for him to which plaintiff had answered that he would have to slip around to do it. Mrs. Patricia Freeman, the wife of Eugene Freeman, testified that she had seen plaintiff dancing in the night spots in this area. She described the dancing done by plaintiff as including moving, bending, twisting and moving the arms a good bit, during which plaintiff gave no appearance of pain. Mr. Eugene Freeman testified that he had seen plaintiff dance on several occasions, doing the twist and other new dances which required bending and moving of the arms during which occasion plaintiff gave no appearance of pain.
“Just prior to the trial of this case and after the taking of the deposition of Dr. Bundrick, Dr. Bundrick saw plaintiff again on June 11, 1974. His report of this examination was filed into evidence in lieu of his testimony. In that report, Dr. Bun-drick gave his impression that followed his examination of Mr. Maines on June 11, 1974 as ‘lumbosacral strain, no evidence of nerve root irritation or herniated lumbar disc.’ Dr. Bundrick stated ‘this patient may have difficulty performing work which requires heavy lifting or excessive bending or stooping of the lower back. However, at the present time all the findings are subjective. He might improve with a back support which is what I would recommend at this time. He is to see you for continued treatment.’
“The evidence in this case clearly establishes that Mr. Maines was required to perform heavy labor, including the carrying of approximately sixty pounds of weight and at times over rough terrain. Dr. Buerlot was of the opinion on December 17, 1973, that it would take plaintiff an additional four to six weeks with a full exercise program to be able to return performing the same duties of this employment without substantial pain. He did not discharge plaintiff and requested that he return for another examination which plaintiff failed to do. Dr. Bundrick as a result of his initial examination on February 1, 1974, felt that strenuous labor, involving stooping and bending, would cause discomfort and, therefore, recommended a program of exercises. He was of the opinion that with that program of exercises, it. would take three or four months before plaintiff could work without significant discomfort. Dr. Willis was of the opinion that plaintiff was unable to perform heavy manual labor on any of the occasions when he saw plaintiff. Dr. John T. Mosley, the original treating physician, was of the opinion that plaintiff was able to return to work at the time of his discharge on January 11, 1974. The Court concludes that the preponderance of the evidence establishes that plaintiff was disabled in January, 1974, at which time compensátion benefits were discontinued. The medical evidence establishes that a return to heavy physical labor at that time would have caused substantial discomfort and pain to plaintiff. As the last examinations of Dr. Willis and Dr. Bundrick indicate that he remains unable to perform heavy manual labor without significant discomfort, he is entitled to workmen’s compensation benefits for total permanent disability for the duration of his disability, not to exceed the maximum length of the time set by law.”

Appellants urge on appeal that it is inconceivable, considering the alleged severity of pain which Maines was suffering, that he would be able to perform such strenuous physical activities as dancing, sitting in a metal boat for three or four hours, and' deer hunting and yet insist he is totally and permanently disabled. These types of recreational activities in no way compare with the strenuous physical exertion plaintiff encountered in his job which consisted of lifting and carrying weights of 60 pounds or more over rough terrain for an entire working day. Thus, there is no contradiction in plaintiff’s ability to engage in light physical activity as compared with his inability to perform the heavy manual labor required by his job.

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


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Theresa M. TURNER, Plaintiff-Appellant, v. SOUTHERN EXCAVATION, INC., Defendant-Appellant.
    No. 12726.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      Burnett, Harrison, Sutton & Walker by Bobby D. Sutton, Shreveport, for plaintiff-appellant.
    Blanchard, Walker, O’Quin & Roberts by J. Edgerton Pierson, Jr., Shreveport, for defendant-appellant.
    Before HALL, MARVIN and BURGESS, JJ.
   HALL, Judge.

Plaintiff, Theresa M. Turner, sued defendant, Southern Excavation, Inc., for property damage and mental anguish and humiliation resulting from willful and wanton trespass by defendant on plaintiff’s property. Judgment was rendered awarding plaintiff $1,500 for property damage, $3,500 for mental anguish and humiliation, and $75 for the cost of a survey of the property, or a total award of $5,075. Expert witness fees for plaintiff’s two experts were set at $50 each.

Plaintiff appeals seeking an increase in the award for property damage and mental anguish and humiliation, and for an increase of the fee of each expert witness to $100. Defendant appeals seeking a reduction of the property damage and mental anguish award, and for disallowance of the cost of the survey.

The record shows that Mrs. Turner is the owner of a 100'' x 100' corner lot located several miles north of Coushatta, Louisiana, in Red River Parish. There was located on the lot a small, rundown old house which is admittedly uninhabitable. Mrs. Turner resides in Shreveport and does not live on the property, nor had anyone else for some period of time prior to the alleged trespass beginning in October of 1973. The lot was covered with small trees and shrubbery, and there was a small concrete slab located thereon that possibly could be used as a foundation. Trees identified specifically as having been growing on the- property included cedar, plum, peach and crepe myrtle. Many of the fruit trees were bearing.

The defendant corporation was doing some construction work for the Highway Department and in this connection leased property adjoining plaintiff’s property as a site for an asphalt plant. Defendant also wanted to use plaintiff’s lot for this purpose. Prior to going onto plaintiff’s property, defendant’s agent, Mr. Kilpatrick, contacted Mrs. Turner by telephone to ask if his company could level and clear the lot and use it as a storage place for its equipment and as a parking lot for its trucks while doing construction work in the area. Defendant may have offered a small rental fee at this time. Mrs. Turner declined the offer.

Sometime shortly thereafter defendant went onto the property of Mrs. Turner and with a bulldozer cleared away the trees and shrubs, most of the topsoil, and the concrete slab. The clearing operation was begun and continued despite the objections of Mrs. Turner and her relatives who lived in the area. Mr. Kilpatrick later met personally with Mrs. Turner at her sister’s house, which was across the street from the lot. At this time defendant, through Mr. Kilpatrick, offered Mrs. Turner $300 for a lease of the property. Again, Mrs. Turner declined the offer and asked him to end his operation on her lot and remove his equipment.

Mrs. Turner’s request was not honored. As a result, she employed a lawyer and filed this suit on January 26, 1974, some three months after the trespass began. Defendant continued to use Mrs. Turner’s property for its own purposes until she filed a petition for and was granted a preliminary injunction in June, 1974, some seven months after the trespass began.

Mrs. Turner’s lot is now stripped bare of vegetation. The trial judge found the actions of the defendant in clearing and bulldozing Mrs. Turner’s property and continuing to use it over her objection, to be a willful and wanton trespass and in legal and moral bad faith. Although contested at trial, defendant does not now contest this aspect of the decision, which is manifestly correct. Thus, we are only faced with an issue of quantum.

Plaintiff seeks an increase in the award for property damage from $1,500 to $10,000, which she alleges is the amount it would take to restore the property to its prior condition. She also seeks to have the award for mental anguish increased to $15,000. Defendant seeks to have the $1,500 award reduced contending that where restoration costs are out of all proportion to the value of the property they do not provide an adequate method for measuring damages. Defendant argues that the proven diminution in market value of the property or the value of timber removed would be a correct method of evaluating damages in cases such as this, and that, in any event, property damages should not exceed the market value of the property. Defendant further argues that $3,500 is beyond the limits of discretion of the trial judge as reflected by the jurisprudence as compensation for plaintiff’s mental anguish and humiliation.

Plaintiff visited her relatives weekly and viewed the property. She occasionally picked fruit from the fruit trees. Some of' the trees were planted by her late husband and had sentimental value and some aesthetic value. The trees and shrubs, whilé not adding to the market value of the' property, had value to the plaintiff. Because of defendant’s actions, she was deprived of her enjoyment of her property.' She was deprived of the pride and pleasure of her property ownership—however meager the property may have been in pecuniary value. She had at least three unpleasant encounters with defendant’s officers and employees and became upset emotionally over the situation on occasion. Defendant’s trespass continued over her objection for several months and it was necessary for plaintiff to employ counsel, file suit, and obtain an injunction before the trespass was halted.

Defendant’s trespass was deliberate, willful, wanton, illegal and forcible. It was done without any vestige of legal right and in legal and moral bad faith.

Replacement or restoration cost, before and after market value, and other usual methods of measuring property damage are of little value in measuring plaintiff’s damages in this case. It is difficult to separate and make specific awards for property damage and for damage resulting from mental anguish and the like. Plaintiff’s pecuniary loss is negligible but her damages are considerable.

Plaintiff offered testimony by an expert in the landscaping business who estimated the cost of replacing the topsoil and planting new trees and shrubs similar to those destroyed at over $8,900. Replacement cost is unrealistic as a measure of damages in this case as such cost is out of proportion with the value of the property, either in terms of market value or aesthetic or sentimental value. The lot’s highest and best use is commercial, and the lot would not and could not be restored to its condition prior to the trespass.

Likewise, diminution in market value is not an appropriate measure of damages. There was testimony by an expert real estate appraiser that the property had a market value of $1,600 and, its highest and best use being commercial, the trees and shrubs added nothing to the market value. Yet, it cannot be denied that plaintiff’s property was damaged. The trees and shrubs, which had aesthetic and sentimental value to plaintiff, were destroyed and cannot be replaced.

The courts of Louisiana have consistently recognized the right of property owners to recover damages done to the aesthetic value of their property. Curole v. Acosta, 303 So.2d 530 (La.App. 1st Cir. 1974); City of New Orleans v. Shreveport Oil Co., 170 La. 432, 128 So. 35 (1930). In Curóle, an award of $750 was made to a plaintiff whose rural property was partially cleared when the defendant used it as a turnaround spot for his bulldozer which was clearing adjoining property. In the City of New Orleans case, one tree was destroyed and could not be replaced and the Supreme Court awarded $750. In that case, the Supreme Court made the distinction between ordinary and wanton trespasses. In each of these cases the destroyed trees and shrubs were found to be irreplaceable and their value to the owners not discernible on the open market. There, as here, neither the replacement costs nor the diminution in fair market value could reasonably be used to determine the amount to be awarded for the property damage.

Likewise, the courts of Louisiana have consistently awarded damages in cases of deliberate, forcible trespass for “invasion of property rights” and “mental anguish” or the like. The nature of such damages is most clearly described in Loeblich v. Garnier, 113 So.2d 95 (La.App. 1st Cir. 1959) as follows:

“The often found general statement that only compensatory and not punitive damages are awardable in Louisiana is in apparent conflict with the awards often made for damages for mental anguish and embarassment caused by an illegal and deliberate violation of property rights or for such violation itself irrespective of any pecuniary damage caused thereby (which damages, according to the definition above cited, are regarded in other states as exemplary or punitive damages). The key to resolution of this conflict seems to be that in such circumstances such awards in Louisiana are regarded as compensatory for violations of a recognized property right, rather than punitory.”

After citing numerous cases in which such awards were made, the court in Loe-blich affirmed an award “for the wrongful and forceful invasion of plaintiffs’ inherent property rights and for their mental anguish, humiliation, and embarrassment thereby sustained.”

The foregoing quotation from Loeblich was cited with approval in a recent decision of this court, Campbell v. Gray, 294 So.2d 841 (La.App. 2d Cir. 1974). In Campbell, a small ditch was dug across the front of plaintiff’s residential property by a contractor with no vestige of legal right to do so. Plaintiff was awarded $500 to restore his lawn and $1,500 for “humiliation, mental anguish and aggravation caused plaintiff by this willful trespass.”

In Scarbrock v. Fowler, 317 So.2d 285 (La.App. 3d Cir. 1975) the court affirmed an award of $2,000 for the mental anguish of a plaintiff whose proven property damages amounted to $12. In Hayward v. Carraway, 180 So.2d 758 (La.App. 1st Cir. 1965) the plaintiff was awarded over $3,500 for the cost of restoring damaged property and $3,000 for mental anguish.

There is no hard and fast rule for measuring damages in a case of willful and wanton trespass and destruction of private property. The court must adopt an approach in each case that will do substantial justice between the parties. East v. Pan American Petroleum Corporation, 168 So.2d 426 (La.App. 3d Cir. 1964); City of New Orleans v. Shreveport Oil Co., supra.

Under LSA-C.C. art. 1934, the trier of fact is vested with much discretion in fixing damages in a case of this kind. We find no abuse of that discretion in the total award of $5,000 as damages for injury to the property, mental anguish, inconvenience and the like, and invasion of and deprivation of plaintiff’s rights of private ownership and enjoyment of property, considering the willful and continuing nature of the illegal trespass.

Plaintiff also seeks an increase in the award for each of her expert witnesses from $50 to $100. The trial judge had discretion in this matter and the $50 awards are not so low as to be an abuse of that discretion.

Defendant seeks to have the $75 awarded by the trial court as the cost of plaintiff’s survey disallowed. Plaintiff testified as to the cost of the survey and as to the necessity of the survey as a consequence of defendant’s trespass. The cost of the survey is a proper item of damages.

For the Reasons assigned, the judgment appealed from is affirmed. All costs of this appeal are assessed to the defendant-appellant.

Affirmed.


text:
    Willene Peevy MOORHEAD, Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 12731.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    Rehearing Denied Dec. 9, 1975.

      Johnson, Johnson & Duke, by Marvin L. Duke, Monroe, for defendant-appellant.
    Holloway, Baker, Culpepper & Brunson, by Bobby L. Culpepper, Herman A. Castete and Frank H. Dickinson, III, Jonesboro, for plaintiff-appellee.
    Before HALL, MARVIN and BURGESS, JJ.
   HALL, Judge.

Defendant-appellant, the State of Louisiana, Through the Department of Highways, hereinafter referred to as the Department, appeals from a judgment granting a preliminary injunction prohibiting the Department, its agents, assigns, or subcontractors from encroaching or constructing upon the lands of plaintiff-appellee, Mrs. Willene Peevy Moorhead, and a subsequent judgment denying the Department’s motion to dissolve the preliminary injunction.

Plaintiff filed suit against the Department for damages and injunctive relief. The petition alleged plaintiff’s ownership of a tract of land approximately one acre in size upon which she resides located in Jackson Parish and fronting on U. S. Highway 167. Plaintiff alleged that the Department began widening Highway 167 and as a result thereof, operated numerous vehicles on her land, excavated her land, removed shrubs therefrom, and performed other types of construction work thereon. Plaintiff alleged irreparable injury and sought a preliminary injunction restraining the Department from performing construction work, on her property during the pen-dency of the proceedings.

The preliminary injunction was granted after a hearing on a rule to show cause directed to the Department.

On appeal the Department’s specifications of error raise three primary contentions in support of its position that the preliminary injunction was improvidently granted against the Department. First, the Department argues that it was not proven that anyone encroached upon plaintiff’s property. Secondly, it is contended that if any work was done on the property of plaintiff it was done by contractors or utility companies over which the Department had no control. Finally, the Department contends plaintiff improperly joined her action for injunctive relief with an action for damages.

The Department’s first contention is that the evidence as to the location of plaintiff’s property line and as to encroachment over the line is insufficient and does not support the issuance of an injunction. While the evidence is brief, it adequately establishes the fact that some construction work in the form of digging, excavation; and trimming or cutting down trees was being conducted on plaintiff’s property. The Department’s own witness, a civil engineer, so testified. He identified iron pipes or stobs marking plaintiff’s boundary and conceded there was some construction work done on her side of the line established by the stobs. The location of plaintiff’s property line is adequately established by the legal description of the property, the Department map in the record, and the engineer’s testimony concerning the iron pipes.

The Department contends that if any construction work was done on plaintiff’s property, it was not done by the Department, but was done by contractors, subcontractors, or utility companies over which the Department has no control and for whose activities it is not responsible. Plaintiff established she was being disturbed in the possession and enjoyment of her property by persons and activities related to the highway construction project. The Department has responsibility for and supervision and control over construction, improvements and maintenance of highways. LSA-R.S. 48:21; 48:92. Injunc-tive relief is available to protect ownership, possession and enjoyment of immovable property. LSA-C.C.P. Art. 3663. Plaintiff made out a prima facie case for a preliminary injunction against the Department. It is only necessary that a prima facie case be made in order to obtain a preliminary injunction. Employers Overload Co. v. Employers Overload Co., N. O., 266 So.2d 546 (La.App. 4th Cir. 1972) writ refused 263 La. 375, 268 So.2d 260 (1972). The Department offered no evidence to support their contention that the activities complained of were done by parties over whom the Department had no control. No evidence was offered by the Department as to who actually did the work, except a suggestion by one witness that it may have been a utility company, or as to the Department’s relationship (contractual or otherwise) with any such parties. In the absence of evidence to the contrary it can only be assumed the highway construction work was being done by or at the direction of or under the control and supervision of the Department.

The Department contends plaintiff improperly cumulated actions for an injunction and for damages in one proceeding. Objection to this effect was made orally at the trial of the rule for a preliminary injunction. The Department had previously filed an answer in the nature of a general denial. Any objection to the improper cumulation was waived by the Department when it failed to raise the objection through a dilatory exception prior to answer. LSA-C.C.P. Arts. 926 and 928. In any event, when plaintiff went forward with the rule for injunctive relief she effectively elected to proceed with the action for an injunction, not the action for damages.

For the foregoing reasons, we find no error in the judgment of the district court granting plaintiff a preliminary injunction, which judgment is affirmed.

Affirmed.


text:
    John G. DeFRANCIS, Jr., Plaintiff-Appellant, v. The CITY OF BOSSIER, Defendant-Appellee.
    No. 12727.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Refused Jan. 30, 1976.

      Kelly, Seaman & Ware, by Donald G. Kelly, Natchitoches, Goff, Goff & Levy by A. K. Goff, III, Ruston, for plaintiff-appellant.
    Steven G. McKenzie, Bossier City, for defendant-appellee.
    Before PRICE, HALL and BURGESS, JJ.
   BURGESS, Judge.

John G. DeFrancis, Jr., appeals from a judgment of the district court affirming a decision of the City Council of Bossier City, Louisiana, which had ordered petitioner’s retail liquor permits suspended for alleged violations of the Bossier City “B drinking” ordinance.

The violations for which DeFrancis was charged occurred November 2, 1974, and petitioner was notified that a hearing would be held by the City Council of Bossier City on Monday, December 30, 1974, regarding the possible supension or revocation of petitioner’s liquor permits.

Causes for suspension were set forth in separate letters dated December 17, 1974, and mailed to plaintiff. Regarding permit number 2696 issued to DeFrancis d/b/a Fountain Lounge, the causes for revocation or suspension are stated as follows:

“a. Violation of the provisions of Section 5-7(7) of the Code of Ordinances of Bossier City, Louisiana by employing or permitting females to engage in ‘B Drinking’, to-wit: Joan West on November 2, 1974.
“b. Violation of the provisions of Section 5-31(7) of the Code of Ordinances of Bossier City, Louisiana in violating the above mentioned section.”

The letter dealing with revocation of permit number 2697 issued to DeFrancis d/b/a Black Knight Lounge, states the causes for revocation or suspension as follows :

“a. Violation of the provisions of Section 5-7(7) of the Code of Ordinances of Bossier City, Louisiana by employing or permitting females to engage in ‘B Drinking’, to-wit: Nina Oden on November 2, 1974.
“b. Violation of the provisions of Section 5-31(7) of the Code of Ordinances of Bossier City, Louisiana in violating the above mentioned section.”

The hearing was had on the specified date and the council ordered that 1974 city liquor permits numbered 2697 and 2696 held i by DeFrancis d/b/a Black Knight Lounge, i Incorporated, and d/b/a Fountain Lounge,'. Incorporated, be suspended for a period" of 15 days effective the first day of JarK uary, 1975, for one violation and for a pe*--. riod of 15 days effective the 16th day of-January, 1975, for the other violation. .

In accordance with the procedure provided by Louisiana Revised Statutes 26:104, plaintiff filed in the district court a petition for devolutive appeal, alleging that improper notice was given him of the hearing because the wrong sections of the city ordinance were set forth in the attached letters; that the action of the City Council was incorrect and illegal and based upon the Bossier City ordinances which are unconstitutional. Plaintiff also asked for and was granted a stay order pending the appeal.

The matter was tried de novo in the district court at which time testimony was given by police officers concerning the alleged “B Drinking” violations occurring at both the Black Knight Lounge and the Fountain Lounge, for which plaintiff had 1974 liquor permits. Plaintiff introduced no rebuttal to this testimony.

In written reasons for judgment the district judge recited what was designated as Section 5-7(7) of the Code of Ordinances of Bossier City, Louisiana:

“No person holding a retail dealer’s permit under this chapter and no alcoholic beverage handling employee shall do or permit to be done any of the following acts on or about the premises covered by such permit:
“(7) Employ or permit females, commonly known as B-Girls, to frequent the premises and solict patrons for drinks or to accept drinks from patrons and receive therefor any commission or any remuneration in any other way.”

The district judge held that the ordinance under consideration was not unconstitutional but was a valid exercise of police power, citing Burnette v. Louisiana Board of Alcoholic Beverage Control, La.App., 252 So.2d 346 and Nichols v. Louisiana Board of Alcoholic Beverage Control, La.App., 257 So.2d 484.

He further found the evidence adduced at the trial de novo “conclusively establishes that employees of the petitioner, namely Joan West and Nina Oden, did solicit drinks in violation of the above quoted ordinance,”, and that petitioner’s actual knowledge of the proscribed acts was not required, again citing Burnette, supra. He ordered the decision of the City Council of Bossier City relative to the suspensions be affirmed, said suspensions to begin effective ten days from the signing of the judgment, which was signed February 11, 1975. Petitioner perfected his appeal from this judgment on February 14, 1975, and obtained an order from the Louisiana Supreme Court staying execution of the suspension pending the finality of the appeal to this court.

On appeal plaintiff assigns the following errors:

1. The trial court erred and abused its discretion in affirming the suspension of a 1974 retail liquor permit in the calendar year of 1975, which in fact presented a moot issue.

2. The judgment of the district court is erroneous in that it upholds the constitutionality of the ordinance of the City of Bossier City prohibiting and criminalizing innocent activities, i. e., a female employee of a retail liquor licensee soliciting from a patron a “drink” for herself.

Plaintiff contends it is evident from the record the orders of suspension deal with two 1974 liquor permits which by statute expired December 31, 1974. He argues that as a consequence the court is without authority to suspend the 1974 permits during 1975 for a violation occurring in 1974, and that the appeal presents a moot question.

With regard 'to the issue of the correctness of the action suspending the permit, the trial judge has, in his reasons for judgment, made reference to Louisiana Revised Statutes 26:88, which sets forth numerous acts prohibited on premises licensed to sell beverages of high alcoholic content and the penalty for violations, as follows:

“No person holding a retail dealer’s permit and no agent, associate, employee, representative, or servant of any such person shall do or permit any of the following acts to be done on or about the licensed premises:
* * * * * *
“(8) Employ or permit females, commonly known as B Girls to solicit patrons for drinks.
“Violation of this Section by a retail dealer’s agent, associate, employee, representative or servant shall be considered the retail dealer’s act for purposes of suspension or revocation of a permit.
“Violation of this Section is punishable as provided in R.S. 26:191 and is also sufficient cause for the suspension or revocation of a permit.
“Notwithstanding the issuance of a permit by way of renewal, the commissioner of alcoholic beverage control may revoke or suspend such permit, as prescribed by this Chapter, for violations of this Section occurring during the permit period" immediately preceding the issuance of such permit(Emphasis added)

Under the provisions of La.R.S. 33:4785, any municipality may suspend or revoke within the corporate limits permits issued to retail dealers in beverages having an alcoholic content of more than six per cent by volume for causes set forth in R.S. 26:88 and 26:89.

Since the determination by the trial court that plaintiff violated the provisions of the ordinance is uncontested, we will consider first whether the appeal in fact presents a moot issue. This issue is in reality twofold : Can the municipal authorities enforce the suspension of a liquor permit in 1975 for violations occurring while the licensee was operating the business under a 1974 permit; if not, does there exist a valid reason for passing on the legality of the suspensions?

The last paragraph of La.R.S. 26:88, quoted supra, permits enforcement of the suspension for violations of that section occurring during the permit period immediately preceding the issuance of such (renewal) permit, and R.S. 33:4785 authorizes the governing authority of a municipality to suspend or revoke within the corporate limits liquor permits issued by it for “causes set forth in R.S. 26:88.” Thus, it appears that the suspensions, if affirmed, may be enforced against DeFrancis as to any liquor licenses under which he may be operating in Bossier City in 1975.

If these suspensions are unenforceable for the reason plaintiff has no current liquor permit or permits in Bossier City, we think it is nevertheless proper for us to determine the validity of the suspensions since such a determination could affect the issuance or denial of a permit to DeFran-cis in subsequent years. Louisiana R.S. 26:79 sets forth the qualifications of applicants for permits and requires that applicants for state and local permits of all kinds shall meet the following qualifications and conditions:

(c * * * * *
“(6) Has not had a license or permit to sell or deal in alcoholic beverages, issued by the United States, any state, or by any political subdivision of a state authorized to issue permits or licenses, revoked within one year prior to the application, .
“(7) Has not been adjudged by the board or convicted by a court of violating any of the provisions of this Chapter.”

Since adjudication that a licensee is guilty of violating any provision of R.S. 26:88 (i. e., B-Girls) is ground for suspension or revocation, the affirmance of the suspensions could have a direct effect on DeFrancis’ ability to obtain a renewal permit.

In Allen v. Louisiana Board of Alcoholic Beverage Control, 141 So.2d 680 (La.App. 1st Cir. 1962), the court, after an exhaustive review of the question,' held:

“In the case at bar, while the notice for the hearing only mentioned the 1961 licenses and permits, LSA-R.S. 26:79(A) (6) and (7) specifically state that no permit may be granted to a person who has had a permit revoked within one year prior to the application and that no permit may be granted to a person who has been adjudged by the Board to have violated any of the provisions of Chapter 1 of Title 26. Under the statutory provisions, the revocation of plaintiff-appellee’s 1961 license is not a moot question.” (Emphasis added)

See also Brumfield v. Louisiana Board of Alcoholic Beverage Control, 265 So.2d 302 (La.App. 4th Cir. 1972), in which the court held, following the Allen decision, that the appeal from a reversal of a revocation of a liquor permit was not rendered moot by expiration of the permit where correctness of the revocation would have a bearing on subsequent permits.

We consider next the question of the constitutionality of the “B-drinking” ordinance and statute. Appellant does not deny the right of the State of Louisiana or a municipal subdivision thereof to regulate various business activities under its police power. However, he urges that such regulation must be tempered with reason and that the statute and ordinance relative to “B Girls” denies equal protection to the female sex and discriminates against females, since neither the ordinance nor the statute applies to males who might be employed on the premises. DeFrancis argues that any classification on the basis of sex is inherently suspect and must be subjected to strict judicial scrutiny. Under this analysis, the state must show a compelling state interest in differentiating between the sexes. He cites as authority for this contention the case of Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed,2d 583 (1973), and the following language in particular:

“With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid.”

We note Frontiero is not conclusive authority for appellant’s contention that sex is a suspect classification subject to strict judicial scrutiny, as a majority of the court did not subscribe to that statement of law quoted above.

It has long been recognized that the state, and its subdivisions, acting under legislative grants of authority and in the exercise of its inherent police power, may regulate the sale of intoxicating liquors. Although intoxicating liquors and traffic therein, where permitted or tolerated, are as lawful as any other property or business and as fully entitled to protection, yet the liquor traffic is admittedly dangerous to public health, safety, and morals and is therefore essentially within, and its regulation or prohibition is fully justified under, the police power. See 45 Am.Jur.2d, Intoxicating Liquors, Section 23 and cases cited thereunder.

In Burnette, supra, a licensee’s liquor permit was suspended for seven days and he appealed attacking the constitutionality of La.R.S. 26:88(8), formerly (7), on the grounds that the statute was discriminatory as to the appellant and alleged “B girls” as compared with other entertainers. The court, without further discussion, held the statute “on its face is not discriminatory, and appellant has offered no evidence that it has been so applied”, and, therefore, found appellant had not been denied equal protection of the law.

We find the ordinance in question does not have the effect of forcing- DeFrancis to discriminate between hiring females as employees to perform any of the jobs ordinarily performed by males in the operation of his business. The ordinance merely operates to regulate certain activities of all persons holding liquor licenses in Bossier City by prohibiting licensees from permitting females to “solicit” from patrons the purchasing of drinks. By the provisions of R.S. 26:88(8), this prohibition applies to all persons licensed by the state to dispense alcoholic beverages of high alcoholic content.

In a recent decision the Louisiana Supreme Court, in State of Louisiana v. Devall, 302 So.2d 909 (La.1974), upheld the state’s prostitution statute which defined the crime as “the practice by a female of indiscriminate sexual intercourse with males for compensation.” A woman charged with prostitution had attacked the statute as being unconstitutional since it denied her the equal protection of the laws.' The Supreme Court in discussing the “equal protection” concept stated:

“. .■ . the guarantee of equal protec- ■ tion of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons in like circumstances.
“ . . . However, in matters in which sex is a material factor, a statute may make a distinction without violating the constitutional guarantee, if the classification is a natural and reasonable one.”

The court then considered Devall’s argument that the prostitution statute denied her the equal protection of the laws and stated:

“With this bare record the court is called upon to presume that the purpose of the legislature in enacting the controverted statute was for some legitimate state purpose, and that the method chosen was relevant to the achievement of that purpose. However, .given this presumption, the contention is that the classification in the Act is irrational, for the objects and purposes of the legislation could have been achieved just as well by making it a crime for men to engage in indiscriminate sexual intercourse for compensation. To make such conduct criminal when engaged in by women only, defendant argues, is the type legislative choice forbidden by the Equal Protection Clause.
“To sustain this contention we must assume that the classification implicit in the statute is unreasonable. But this we may not do. The burden is upon the person claiming that the classification is unreasonable .and irrational to .support that contention with facts which will overcome the presumption of constitutionality.
“Only argument is advanced to support defendant’s contention. It is argued that male prostitution is prevalent and constitutes a social evil detrimental to the public welfare just as does female prostitution. Aside from the fact that this record does not support the facts, upon which this contention rests-, there is nothing upon which this Court can rely to conclude that male prostitution is a social problem of any importance. A court may not suppose that male prostitution is a problem, of such significance that the legislature should proscribe the practice as a crime. The Constitution does not and should not require the legislature, before attempting to regulate an existing practice which is detrimental to the public welfare, to regulate a practice which is not.”

The Supreme Court’s reasoning is applicable to the case before us; Statutes are presumed to be ■ constitutional. The legislature may make classifications based upon sex where the classification is rationally related to the achievement of a legitimate state purpose. The burden of proving that the legislature’s classification is irrational and arbitrary rests squarely on the party challenging the constitutionality of the statute. Other than allegations made in brief, appellant has not shown that solicitation of drinks by males constitutes a social evil of any significance. Therefore, the classification along sex lines in this case is not irrational or arbitrary. “The Constitution does not and should not require the legislature, before attempting to regulate an existing practice which is detrimental to the public welfare, to regulate a practice which is not.” Devall, supra.

From our study of the circumstances in the instant case and the application of the ordinance to activities of the plaintiff licensee, we find he has not been discriminated against by the actions of the council in enforcing the city ordinance or the state statute. We further find, in view of the Louisiana Supreme Court decision in Devall, that the ordinance and statute here in question are not violative of any provisions of the Constitution of the United States or of the State of Louisiana.

Accordingly, the judgment of the lower court is affirmed and it is ordered that the two city retail liquor permits for the year 1974, in the name of John G. DeFran-cis, Jr., listed as Permit No. 2696, Fountain Lounge, Inc., and Permit No. 2697, Black Knight Lounge, Inc., and any operating privileges under any existing permits which he may hold in the City of Bossier City be suspended for a period of 30 days, such suspension to become effective within ten days from the date this judgment becomes final.

All costs of these proceedings, including the costs of appeal, are assessed against appellant.


text:
    William R. ELROD and Don K. Carroll, Plaintiffs-Appellants, v. CITY OF SHREVEPORT, Defendant-Appellee.
    No. 12717.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    Thomas, Prestridge & Burchett, by Rogers M. Prestridge, Bossier City, for plaintiffs-appellants.
    Gallagher & Gallagher, by Andrew B. Gallagher, Shreveport, for defendant-ap-pellee.
    Before PRICE, HALL and BURGESS, JJ-
   HALL, Judge.

Plaintiff-appellant, William R. Elrod, appeals from a judgment in favor of the defendant-appellee, the City of Shreveport. The City has filed a motion to dismiss based upon appellant’s failure to timely file his devolutive appeal bond.

The judgment of the trial court was read and signed on February 7, 197S. A clerk’s certificate shows that notice of the judgment was mailed to plaintiff-appellant through his attorney on February 10, 1975. Plaintiff-appellant moved for an appeal on April 2, 1975, and an order issued that date granting appellant a devolutive appeal returnable June 2, .1975. Bond was fixed at $250, pursuant to LSA-C.C.P. Art. 2124. The bond was filed May 29, 1975.

Under the applicable provisions of the law, May 20, 1975, was the last day on which appellant could have filed his bond and thereby perfected his appeal. LSA-C. C.P. Art. 2087 provides that an appeal must be taken, and the appeal bond filed, within ninety days of the expiration of the delay for applying for a new trial, as provided by LSA-C.C.P. Art. 1974, if no application has been filed timely. No application was filed in this case; and the ninety-day period provided by LSA-C.C.P. Art. 2087 began to run seven days exclusive of legal holidays from the day after notice of judgment, as required by LSA-C.C.P. Art. 1913, was mailed on February 10, 1975.

The seven-day period began to run February 11, 1975, and exclusive of legal holidays ended February 19, 1975. The ninety-day period began to run on February 20, 1975, and ended on May 20, 1975. Appellant’s bond was filed nine days later and was not timely. The timely filing of the appeal bond is jurisdictional, and the failure of appellant to do so requires that the appeal be dismissed. Wright v. Mark C. Smith & Sons, et al., La., 283 So.2d 85 (1973).

The motion of the City to dismiss the appeal is granted and the appeal is dismissed at appellant’s costs.

Appeal dismissed.


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    Hilton RAMSEY d/b/a Ramsey Bus Line, Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS and Louisiana Paving Company, Defendant-Appellant.
    No. 12745.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      Johnson, Johnson & Duke by Marvin L. Duke and Don H. Johnson, Monroe, for defendant-appellant.
    Holloway, Baker, Culpepper & Brunson by William H. Baker and Frank H. Dickinson, III, Jonesboro, for plaintiff-appellee.
    Before HALL, DENNIS and BURGESS, JJ.
   HALL, Judge.

This appeal by defendant, State of Louisiana, Through the Department of Highways, is from a judgment enjoining the Department and its contractor, Louisiana Paving Company, from preventing buses owned by plaintiff, Hilton Ramsey d/b/a Ramsey’s Bus Lines, “from traversing Louisiana Highway 4 over an approximate distance of four miles, which is under construction, during the period of construction.” Defendant, Louisiana Paving Company, did not appeal.

Plaintiff operates a bus line between Jonesboro and Shreveport, carrying passengers and light freight under a certificate of public convenience and necessity from the Louisiana Public Service Commission. He makes two round trips daily, five days a week, traversing en route a four mile stretch of Louisiana Highway 4 between Jonesboro and Danville on which construction work is being conducted pursuant to a contract between the Department and Louisiana Paving Company. The bus traverses the area under construction at about 7:30 a. m. on the way to Shreveport, about 11:30 a. m. on the way back to Jonesboro, about 2:30 p. m. on the way to Shreveport, and about 6:45 p. m. on the way back to Jonesboro.

In March of this year, plaintiff’s bus was stopped by a flagman and he was told the highway was closed to through traffic and he could not go through. Plaintiff talked to the superintendent on the job and was told the same thing. He promptly filed suit for damages and injunctive relief against the Department and the contractor. Plaintiff elected to go forward with the action for an injunction and after trial, judgment was rendered granting the injunction.

The evidence shows a substantial part of plaintiff’s passenger and freight business has its origin or destination within the four mile area. If he cannot traverse this area and is required to take a detour of about twenty-five miles over another highway also under construction, he will lose substantial business and goodwill and the public will be inconvenienced and without service. He will be required to eliminate one of the daily round trips because of the additional travel time involved. Plaintiff contends he will suffer irreparable injury and has no adequate remedy at law.

The evidence shows the contract between the Department and its contractor provides that the contractor is not required to maintain through traffic but is required to allow and is, in fact, allowing use of the highway by local traffic. The contractor’s superintendent defined local traffic as that which has its origin or destination within the four mile area or traffic that has business within the area. Through traffic was defined as that “just passing through.” The specifications of the contract containing the provisions relating to through and local traffic are not in the record, but both parties accept the description of the contract provisions given by the superintendent. The superintendent testified that the mailman, for example, was allowed to use the highway; also, that persons living in the area could come in and out and persons visiting or having business in the area could go in and out. One lane was kept open at all times. The object was to hold traffic to a minimum for safety reasons and also to allow construction to move along without delay and interference.

The evidence also shows the road is open during the first and last trips made daily by plaintiff’s buses, which are before and after daily construction work hours.

The legal authority upon which the Department relies to prevent plaintiff’s use of the highway during the construction period is LSA-R.S. 48:346 which provides:

“The director may close any section of highway to all or any class or part of traffic or restrict the use thereof to the extent he thinks expedient for any length of time that, in his judgment, is appropriate:
(1) To permit construction or maintenance operations to proceed without interruption ;
(2) To protect the property of the state or the persons and property of the traveling public;
(3) Whenever, in his opinion, there is an emergency requiring the closing or restriction; or
(4) Whenever, in his opinion, the closing or restriction is to the best interest of the state or the state highway system.”

On appeal, the Department contends the highway was closed to through traffic by order of the Director through the Department’s contract with the Louisiana Paving Company. The Department further contends that in any event plaintiff is not entitled to an injunction because he has not proved irreparable injury as required by LSA-C.C.P. Art. 3601, his injuries, if any, being compensable by monetary damages.

Plaintiff contends he has proven irreparable injury, that no order has been rendered by the Director closing the highway, that any order issued was not done in accordance with the Administrative Procedure Act, that at most the Director ordered the highway closed only to through traffic and plaintiff is local traffic, and that the statute giving the Director discretion to close highways is overly broad and unconstitutional.

The Director of the Department of Highways effectively and reasonably exercised his authority under LSA-R.S. 48:346 to close the section of the highway under construction to through traffic by virtue of the provisions of the contract with Louisiana Paving Company. No certain procedure or form of notice is required by the statute. The Administrative Procedure Act is not applicable. Notice by flagmen, signs, barricades, and the like is sufficient.

The Director has not closed the section of the highway to local traffic. Plaintiff’s operation amounts to local traffic under the definition given by defendant’s witness and accepted by the parties as descriptive of the contract provisions. He picks up and delivers passengers and freight having their origin and destination within the area under construction. He is just as much local traffic as the mail service. The trial court found there would be little inconvenience to the Department or its contractor in allowing plaintiff’s buses to go through twice a day. The Director has not closed the section of the highway to plaintiff in the operation of his small van-type buses. The action taken in prohibiting plaintiff’s buses from traversing this section of the highway was not taken at the direction of the Director and was without legal authority.

The protection of plaintiff’s right to do business, and the protection of plaintiff’s right and duty to serve the public under his certificate as a public carrier are properly subjects of injunctive relief. See West v. Town of Winnsboro, 252 La. 605, 211 So.2d 665 (1968).

This opinion does not restrict the Director, or those properly acting under his authority, from closing the section of the highway at any time in accordance with the provisions of LSA-R.S. 48:346 for the reasons enumerated in the statute. Our holding is that under the evidence presented in this case the Director has not, in fact, closed the section of the highway to the class of traffic'—local traffic—into which plaintiff’s operations fall. It may be that during the course of construction there may be times when for safety, construction or emergency reasons, plaintiff’s buses should not be allowed to use the highway. The injunction does not prevent the exercise of the Director’s discretion to close the highway in such instances.

For the reasons assigned, the judgment of the district court is affirmed. The defendant—appellant is cast for such costs of the appeal as may properly be assessed against it under applicable law.

Affirmed.


text:
    Jerry CANTELUPE, Plaintiff-Appellant, v. The CITY OF BOSSIER, Defendant-Appellee.
    No. 12728.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    Goff, Goff & Levy by A. K. Goff, III, Ruston, Donald G. Kelly, Natchitoches, for plainti f f-appellant.
    Steven G. McKenzie, Bossier City, for defendant-appellee.
    Before PRICE, HALL and BURGESS, JJ.
   BURGESS, Judge.

Plaintiff, Jerry Cantelupe, is appealing from the judgment of the district court in a mandamus proceeding which rejected his demand that defendant, City of Bossier City, be ordered to issue him a liquor permit for the year 1975. The trial court found that Cantelupe failed to meet the requirements of Louisiana Revised Statutes 26:79, subd. A(5) in that he had been convicted of the crime of attempted contributing to the delinquency of juveniles. We reverse the judgment of the district court and order the issuance of a liquor permit for the year 1975 to plaintiff, subject to his compliance with any and all other applicable provisions of the law.

Cantelupe was the holder of a valid city retail liquor permit for the calendar year of 1974 in connection with the operation of a lounge in Bossier City and had applied for a 1975 permit.

By letter dated December 17, 1974, the mayor of Bossier City informed Cantelupe that his application had been, disapproved by the Commissioner of Public Safety and that a hearing on his application would be held by the City Council on December 30, 1974. The mayor’s letter set forth the following grounds for disapproval of the application :

“a. Failure to meet the qualifications of the Code of Ordinances of Bossier City, Louisiana, Section 5-22 and Section 5-30;
“b. Failure to meet the qualifications of Louisiana Revised Statutes 26:79 and 26:279: conviction of the crime of attempted contributing to the delinquency of a juvenile;
“c. Violating the provisions of the Code of Ordinances of Bossier City, Louisiana, Section 5-31 and Section 5-7; employing or permitting a person under eighteen (18) years of age on the premises.”

A hearing was held on December 30, 1974, which resulted in the denial of plaintiff’s application for a liquor permit. On December 31, 1974, plaintiff filed a “petition for mandamus” in the district court requesting that the City Council show cause why it should not be ordered to issue a 1975 liquor permit to plaintiff. Plaintiff also requested and was granted an order staying the enforcement of the City Council’s resolution and permitting him to operate his lounge until final determination of his application for a license. The city answered plaintiff’s petition in the form of a general denial but made no objection to the use of the mandamus form of procedure.

Trial of the mandamus proceeding was held on January 10, 1975. Evidence at trial consisted of several stipulations and documentary evidence. The parties stipulated that Cantelupe had been convicted of the crime of attempted contributing to the delinquency of juveniles; that this conviction was a responsive verdict to a charge of contributing to the delinquency of a juvenile; that the only evidence that Cante-lupe had employed a person under the age of 18 was in the transcript of the criminal trial; and that his conviction was not a felony. The documentary evidence consisted of the letter from the mayor which stated that Cantelupe’s application had been disapproved and gave notice of the reasons for the denial; the ruling of the city council at the hearing on December 30, 1974; and the bill of information, minutes, and transcript of Cantelupe’s criminal trial. The latter documents were admitted in evidence subject to the objection of Cante-lupe’s counsel.

The trial court took the matter under advisement. Judgment rejecting plaintiff’s request for mandamus was signed on February 11, 1975. In his written reasons for judgment the trial judge based his refusal to order the issuance of a 1975 license solely on the ground that plaintiff had been convicted of attempting to contribute to the delinquency of a juvenile. The trial judge stated that La.R.S. 26:79, subd. A(5) requires that an applicant for a liquor permit shall not have been convicted of contributing to the delinquency of juveniles. He reasoned that “an attempted crime is, by its own definition, not a different crime from the intended crime, but is a lesser grade of the same crime. Therefore, the city council was justified, upon proof of conviction of the crime of attempted contributing to the delinquency of a juvenile, in denying petitioner’s request for a license renewal.”

After the district court’s rejection of his demands, Cantelupe petitioned this court for a stay order, which application was denied with one judge dissenting. Plaintiff then applied to the Supreme Court for an order staying the closing of his lounge pending final determination of his appeal. The Supreme Court granted the stay order.

In his appeal to this court Cantelupe argues the district court erred in holding that the city council properly refused his application for a permit on the ground that plaintiff failed to meet the requirements of R.S. 26:79, subd. A(5).

Defendant contends the judgment below is correct for the reasons expressed by the trial judge in his written opinion. Defendant also argues that the refusal of the city council to issue a 1975 permit was justified under the authority of R.S. 26:79, subd. A(5) and R.S. 26:88(1), (3), (8). These statutes provide that an applicant may not have been adjudged to be in violation of any of the provisions of Title 26, Chapter I, .among which provisions are sections prohibiting the sale of alcoholic beverages to anyone under the age of 18 and the employment of anyone under the age of 18 when the sale of alcoholic beverages constitutes the main business. This was not one of the grounds for denial of plaintiff’s application for a 1975 permit enumerated by the mayor in his letter to Cantelupe on December 17, 1974, nor was it argued at the trial of the mandamus proceeding in the district court.

This appeal presents two issues: (1) is the conviction of the attempt to contribute to the delinquency of a juvenile grounds for the denial of a liquor permit under R. S. 26:79, subd. A(5) ; (2) may defendant argue for the first time in this court that the application was properly denied for plaintiff’s failure to meet the requirements of R.S. 26:79, subd. A(7) by reason of his alleged violation of R.S. 26:88(1), (3), (8)?

Before considering these issues, it is important to note that the letter informing plaintiff that his application had been denied listed failure to meet requirements of and the violation of several ordinances of Bossier City. On appeal the city has not urged these ordinances as grounds to support the denial of plaintiff’s permit. The ordinances were never filed in evidence and are not part of the record. There has been no allegation that the terms of La.R.S. 13:3712(B) have been complied with so that this court might take judicial notice of the ordinances of Bossier City. Therefore, this court may not consider the ordinances as grounds to deny plaintiff’s 1975 liquor permit since they are not part of the record of this case.

Louisiana Revised Statutes 26:79, subd. A(5) provides:

“A. Applicants for state and local permits of all kinds shall meet the following qualifications and conditions:
******
(5) Has not been convicted in this or in any other state or by the United States or any other country of soliciting for prostitution, pandering, letting premises for prostitution, contributing to the delinquency of juveniles, keeping a disorderly place, or illegally dealing in narcotics.
******

(Emphasis supplied)

The parties stipulated that a jury returned a vérdict against Cantelupe of guilty of attempting to contribute to the delinquency of a juvenile in response to a charge of contributing to the delinquency of a juvenile. The district court held that the conviction of the attempt was sufficient grounds to deny issuance of a permit under the authority of R.S. 26:79, subd. A(5).

Revised Statutes 14:27(C) provides that “an attempt is a separate but lesser grade of the intended crime . . .” Article 598 of the Code of Criminal Procedure states that “[w]hen a person is found guilty of a lesser degree of the offense charged, the verdict or judgment of the court is an acquittal of all greater offenses charged in the [same] indictment .” It is apparent, therefore, that the jury’s responsive verdict of guilty of an attempt to contribute to the delinquency of juveniles was an acquittal of the greater offense of contributing to the delinquency of juveniles, the charge in the bill of information against Cantelupe.

Courts have held on several occasions that a liquor permit may be denied only for those reasons specifically provided by law. In Vice v. Assumption Parish Police Jury, 135 So.2d 108 (La.App. 1st Cir. 1961), the court stated:

“It is elementary that neither of the defendants herein may decline issuance of the permit sought except for a reason specifically authorized by law. It is equally clear that refusal to grant such a permit for any reason other than one expressly set forth by the Legislature would be a flagrant violation of applicant’s Constitutional rights and, as such, absolutely null, void and of no effect.”

See also Harrison v. Commission Council of Bogalusa, 169 So.2d 159 (La.App. 1st Cir. 1964) and Hargett v. Village of South Mansfield, 271 So.2d 378 (La.App. 2d Cir. 1972).

The statute states that an applicant cannot have been convicted of contributing to the delinquency of a juvenile. Conviction of the “attempt” to do that crime is not one of the grounds to deny a liquor permit. Furthermore, the responsive verdict of guilty of the “attempt” constituted an acquittal of the crime itself. Therefore, we find the district court erred in refusing to order the issuance of plaintiff’s 1975 liquor permit on the ground that plaintiff failed to meet the qualifications of La.R.S. 26:79, subd. A (5).

Defendant in its brief filed with this court has, for the first time, contended plaintiff failed to meet the requirements of R.S. 26:79, subd. A(7), in that the transcript of Cantelupe’s criminal trial shows that he violated the provisions of R.S 26:88(1), (3), and (8).

Revised Statutes 26:96 and 33:4787 require that an applicant be given notice of the cause or causes for refusing the application for a permit. Since the notice mailed to plaintiff by the mayor did not enumerate plaintiff’s failure to meet the requirements of R.S. 26:79, subd. A(7) by reason of his violation of R.S. 26:88(1), (3), (8) as a cause for denying his application for a permit, we find that defendant may not now advance that argument as justification for its denial of plaintiff’s application for a 1975 permit.

Accordingly, the judgment of the district court rejecting plaintiff’s demands is reversed, and it is ordered that the City Council of Bossier City issue to plaintiff, Jerry Cantelupe, a 1975 liquor permit subject to his compliance with any and all other requirements of law.


author: PRICE, Judge.

text:
    David Gladden EMERSON, Jr., Plaintiff-Appellee, v. Margaret Sue Seegers Van Ness EMERSON, Defendant-Appellant.
    No. 12723.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.
    Rehearing Denied Dec. 9, 1975.

      Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for defendant-appellant.
    Love, Rigby, Dehan & Love by Samuel P. Love, Jr., Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and BURGESS, JJ.
   PRICE, Judge.

David Gladden Emerson, Jr., was granted a judgment of separation from defendant, Margaret Sue Seegers Van Ness Emerson, on May 31, 1973. Defendant thereafter filed suit for a partition of the community property and an inventory was subsequently taken and filed on October 22, 1973. Both parties filed motions to traverse the inventory and filed claims against the community. David Emerson also seeks to recover on behalf of the community sums allegedly spent on the separate property of his wife.

Judgment was rendered on February 20, 1975, denying Margaret Emerson’s claim for reimbursement for separate funds allegedly used for the benefit of the community. This judgment further ordered her to reimburse the community for the sum of $3,730.31 for monthly mortgage payments made by the community on her separate property. The contested ownership of numerous items of personal property listed in the inventory was also determined by the judgment rendered.

Mrs. Emerson has appealed from the judgment assigning specifications of error on behalf of the trial court, contending the trial court committed the following errors :

1. In denying her claim against the community for the sum of $8,629.55 comprising her separate and para-phernal funds advanced to the community.
2. In requiring her to reimburse the community for mortgage payments made on her separate property while not requiring offsetting compensation for income received therefrom.
3. In not demanding the community to reimburse her separate estate for the value received as a trade-in on an automobile which she owned prior to the marriage in 1965.
4. In finding that a 357 magnum pistol, a Weatherby rifle, a riding lawnmower and a dinner ring were community property.
5. In finding that the proceeds received by Mr. Emerson from the sale of a Kingfisher boat, Evinrude motor and a Moseley trailer was only $425.00 and not $600.00.
6. In finding the sale price of a small quantity of tin and lumber sold to appellant’s father for $54.50 should be included in the community inventory.
7. In not adding the value of the barge being built by Mr. Emerson to the community estate.

We shall discuss the issues in the order presented above.

ASSIGNMENT OF ERROR (1)

Immediately after her marriage to David Emerson Margaret Emerson borrowed the sum of $8,629.55 against an insurance policy which she owned prior to the marriage. She opened a joint checking account and deposited $4,629.55 of the loan proceeds in that account. The remainder of the loan she deposited in a savings account opened in the names of both parties. She now claims that the funds were used for the benefit of the community and that she is entitled to reimbursement. Louisiana Civil Code Article 2391 grants a wife a right against her husband for restitution of her paraphernal property.

In order to obtain restitution she need only prove that her separate property, or the proceeds of a sale thereof, were delivered to her husband and were used for his benefit or for the benefit of the community. Slater v. Culpepper, 233 La. 1071, 99 So.2d 348 (La.1957); Broyles v. Broyles, 215 So.2d 526 (La.App. 1st Cir. 1968). She need not prove that the value of the community has been enhanced by the expenditure of her funds. Broyles v. Broyles, supra.

The trial judge in his reasons for judgment dictated into the record recognized this principle of law to be applicable but found the evidence insufficient to allow recovery by Margaret Emerson. Primarily the court rejected her claim because of the finding that after she deposited these sums in community accounts they lost any separate identity and that without clear and convincing proof being furnished by her of how the monies were spent for the benefit of the community, she cannot be reimbursed. The record shows Margaret Emerson actually made the disbursements from the community accounts rather than her husband. He wrote only a few isolated checks as his wife apparently handled the business affairs during the period they lived together. Margaret Emerson did not produce any invoices, checks or other documentary proof to corroborate her own general testimony as to the expenditures which she claims reimbursement therefor.

In examining the testimony of David Emerson, however, we find an admission by him that the sum of $4,500 of the $8,600 brought into the marriage by his wife had been spent in alterations to the community residence. We find this admission is sufficient corroboration of Margaret Emerson’s testimony to allow her reimbursement from the community of this amount. In all other respects the rejection by the trial court of her claim for the balance of the $8,600 was correct.

ASSIGNMENT OF ERROR (2)

Prior to the marriage Margaret Emerson owned a home on Midway Street in Shreveport. The mortgage payments on the home were $53.00 a month and increased to $58.00 during the marriage. After the marriage this home was rented and the rentals ranged from $75 to $95 a month. The rentals were deposited in the community checking account and the mortgage payments were drawn from this account also. The trial court found that Margaret Emerson owed the community $3,730.31 for these monthly mortgage payments made by the community on her separate property. We find no error in this conclusion. Nor can she be allowed any credit for rentals deposited in the community bank account. Under La.Civil Code Article 2386 the rentals are fruits of her paraphernal property that fall into the community of acquets and gains. In a case previously decided by this court, Moore v. Moore, 255 So.2d 193 (La.App. 2nd Cir. 1971) we found that the wife was indebted to the community for the amount paid by the community on a mortgage affecting her separate property and that the wife was not entitled to a credit for rentals received from her separate property.

ASSIGNMENT OF ERROR (3)

Margaret Emerson claims $1,500 as the trade-in value of an automobile she owned prior to her marriage. In brief to this court David Emerson acknowledges his wife is entitled to reimbursement for this amount and the judgment should be modified accordingly.

ASSIGNMENT OF ERROR (4)

Margaret Emerson contends the trial court improperly found that a 357 magnum pistol, a Weatherby rifle, a riding lawnmower and a dinner ring were community property.

The settled rule of law is that all property acquired during the marriage is presumed to fall into the community of ac-quets and gains. La.Civil Code Articles 2334 and 2402. The burden of proof rests on the party alleging its separate character. This burden is satisfied only when it is proven that the property was acquired and paid for with the separate funds, and that proof must be strict, clear, positive and legally certain. Fleming v. Fleming, 211 La. 860, 30 So.2d 860 (La.1947); Succession of Hyde, 281 So.2d 136 (La.App. 3rd Cir. 1973). We do not find the evidence sufficient to overcome the presumption of community ownership of these items purchased during the marriage and affirm the trial court’s finding that the items are community property.

ASSIGNMENT OF ERROR (5)

Margaret Emerson contends the sale price received by her husband for a boat, motor and trailer was $600 and not $425 as found by the trial court. The purchaser of these items testified at the trial that he paid the sum of $425 for this property. His check in payment was filed in evidence to corroborate his testimony. No evidence to rebut the testimony of the purchaser was offered, and we therefore affirm the trial court’s finding that the sale was for $425.

ASSIGNMENT OF ERROR (6)

Margaret Emerson contends that 27 sheets of tin and 41 pieces of lumber supposedly sold to her father for $54.50 were improperly added to the inventory as the items were given by her to her father. H. O. Seegers, father of Mrs. Emerson, testified that he bought the tin and lumber from his daughter, and although his check was offered in payment therefor, it was still being held by him. On the basis of Mr. Seeger’s testimony we find the trial court was correct in ordering the $54.50 purchase price of the tin and lumber added to the inventory.

ASSIGNMENT OF ERROR (7)

The last error urged by Margaret Emerson is the court’s failure to order the inclusion in the inventory of the community the value of a barge being constructed by her husband. The record shows the barge’s construction began after the separation was granted between the parties and subsequent to the dissolution of the community of ac-quet and gains formerly existing. Therefore, the trial court was correct in rejecting this demand.

In accord with the foregoing, that portion of the judgment appealed from which rejected all claims of Margaret Emerson for reimbursement of sums owed to her separate estate by the community is reversed, and it is now ordered that the separate and paraphernal estate of Margaret Emerson is entitled to be reimbursed by the community of acquets and gains formerly existing for the following sums:

1. The sum of $4,500 as a result of monies advanced to and used by the community from her separate estate during the marriage.
2. The sum of $1,500 as the value of an automobile belonging to her separate estate used as a partial payment on the purchase of another automobile for the community.

In all other respects the judgment appealed from is affirmed.

Costs of this appeal are to be paid equally by the parties.


author: DENNIS, Judge.

text:
    William L. DILLON and Wilma Jean Dillon applying for Adoption of Roger Dale Fontenot and Theresa Fontenot, Plaintiffs-Appellants, v. STATE of Louisiana, Defendant-Appellee.
    No. 12715.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      Holloway, Baker, Culpepper & Bronson by William H. Baker, Jonesboro, for plaintiffs-appellants.
    Whitten & Blake by Leon H. Whitten, Jonesboro, Steven E. Adams, Baton Rouge, for defendant-appellee.
    Before PRICE, DENNIS and MARVIN, JJ.
   DENNIS, Judge.

On March 7, 1975, the trial court orally announced its decision to reject appellants’ rule to obtain custody of two minor children. The record does not contain a formal judgment signed in response to the trial judge’s oral reasons for his decision.

An appeal is premature in the absence of a signed judgment in the record and we must dismiss this appeal ex proprio motu. Louisiana Code of Civil Procedure, Articles 1911 and 2083; Cardean v. Cannon, 307 So.2d 818 (La.App., 3d Cir. 1975); McElwee v. McElwee, 244 So.2d 35 (La.App., 2d Cir. 1971); Advertiser, Division of Independent, Inc. v. Tubbs, 203 So.2d 418 (La.App., 3d Cir. 1967); Kleb v. Choate, 203 So.2d 422 (La.App., 3d Cir. 1967).

For the foregoing reasons, the appeal is dismissed without prejudice at the cost of the appellants.

Dismissed.


author: REDMANN, Judge.

text:
    Susan Johnson, wife of Charles E. WELSH v. Charles E. WELSH.
    No. 7235.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Rehearing Denied Dec. 9, 1975.
    Writ Granted Jan. 30, 1976.

      T. M. McBride, III, Chalmette, for plainti f f-appellee.
    Garland R. Rolling, Metairie, for defendant-appellant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   REDMANN, Judge.

.Appealing from a March 24, 1975 default judgment of separation, a husband argues only that the trial court in Pla-quemines Parish lacked non-waivable venue, C.C.P. 3941, because his wife (unlike the wife in Berry v. Berry, La.1975, 310 So.2d 626) did not have lawful cause to leave her husband’s domicile in Jefferson Parish and establish a separate domicile of her own in Plaquemines.

Pretermitting other questions, we reason that a law which would enable a husband, but not a wife, to move at will to a new parish and there sue, would violate La.Const. art. 1 § 3: “No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of . . . sex . . .

Accordingly, today more than ever C.C. 39’s aphorism making the wife’s domicile that of her husband must be construed to mean that, if living together at their matrimonial domicile (see Clark v. Clark, 1919, 145 La. 740, 82 So. 875, 876), the two spouses have only that one domicile. Although C.C. 120 gives to the husband the final selection of the family home and declares the wife “bound” to live with the husband at the domicile he selects, there is only one penalty for the wife’s refusal to do so: “all that the law does is to denounce the refusal of the wife to live with the husband as an abandonment and to allow a separation from bed and board on that ground.” Latham, v. Latham, 1950, 216 La. 791, 44 So.2d 870, 871. Thus even if the wife unjustifiably abandons the husband, she today is not (if ever she was) imaginarily incarcerated in whatever domicile her husband may elect, as if she were a runaway child.

Precisely because “an unwilling, wife cannot be compelled to live with her husband,” Latham, 44 So.2d at 871, a wife who is no longer willing to live with her husband — just like a husband who is no longer willing to live with his wife — has the legal power to establish a new domicile wherever she pleases.

On the question of ability to establish a new domicile, it makes no difference how the unwillingness to live with the other spouse arose: no difference for the husband, and none for the wife. Either spouse can, under any circumstances, leave the other, go elsewhere and there establish a domicile, and there meet the unwaivable venue requirement of C.C.P. 3941.

The evidence shows that this plaintiff spouse did return to her original domicile in Plaquemines parish with the intent there to remain indefinitely and without any intent of returning again to the matrimonial domicile she shared with her husband in Jefferson parish. Her domicile thus became Plaquemines parish, and Pla-quemines became a parish of proper venue under C.C.P. 3941.

Affirmed.

      . The husband also asks that we consider that Ms first attorney’s failure to file an answer prevented his contesting this matter. But such a failure by an attorney is neither an exception to the law authorizing default judgments, C.C.P. 1701-1702, nor cause, for annulling a default judgment, C.C.P. 2002 and 2004.


text:
    Jesse L. CASE, Jr., Plaintiff-Appellant, v. Brenda Morgan CASE, Defendant-Appellee.
    No. 12713.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 6, 1975.

      Crawford A. Rose, Jr., Rayville, for plaintiff-appellant.
    Hamilton, Carroll & Miller by Orlando N. Hamilton, Jr., Oak Grove, for defendant-appellee.
    Before PRICE, HALL and MARVIN, JJ-
   HALL, Judge.

This appeal, in which no record on appeal has been lodged in this court, is again before the court after remand for the taking of evidence on a motion to dismiss appeal filed by defendant-appellee.

The motion to dismiss is based on the failure of appellant to pay the cost of preparing the record on appeal and the filing fee required by the appellate court in the total amount of $291, within three (3) days prior to the return day of the appeal as required by LSA-C.C.P. Art. 2126 and LSA-R.S. 13:4445. The judgment appealed from was rendered and signed on December 19, 1974. A motion for new trial was denied on January 20, 1975. Plaintiff-appellant was granted orders of suspensive and devolutive appeal with return date fixed on April 17, 1975, and a cash bond was filed. The motion to dismiss appeal was filed May 28, 1975. Filed with the motion was an affidavit of the clerk of court, with which appellant takes no issue, which establishes that appellant was twice notified the record was ready for transmittal and was informed of the amount of costs due prior to the return date but the clerk of court never received payment.

Plaintiff filed an answer to the motion to dismiss in which it was alleged that upon being notified of the costs due appellant requested the clerk to deduct the amount from the cash deposit on hand which the clerk declined to do. It was further alleged that upon being notified the second time that costs were due appellant’s counsel mailed to the clerk his check for $291 but upon checking with the clerk’s office it was learned after the motion to dismiss was filed that the check was not received, was not presented for payment to the bank and was not returned to appellant’s counsel.

The answer to the motion to dismiss raised two issues:

(1) Does the deposit of cash pursuant to a devolutive appeal as security for the payment of costs including the preparation of the transcript, relieve the appellant of the necessity of making an additional payment of costs or can that deposit be used for the payment of the costs it is designed to secure ?
(2) Did appellant, in fact, timely mail a check for costs to the clerk and, if so, does that mean the failure of the clerk to lodge the transcript timely is not imputable to the fault of the appellant?

On this court’s first consideration of the motion, it was held as to the first issue that the deposit of cash as security for an appeal does not relieve the appellant of the obligation of paying costs and fees accrued prior to the return date of an appeal as required by LSA-C.C.P. Art. 2126 and LSA-R.S. 13:4445. As to the second issue, it was held that this factual issue could not be adjudicated on the basis of the ex parte affidavit and allegations in the record. The case was remanded to the district court for the taking of evidence on the question of if and when a check in payment of costs was mailed and any other facts bearing on the payment or nonpayment of costs by appellant and whether the failure to timely lodge the record on appeal is imputable to appellant. Case v. Case, 316 So.2d 418 (La.App.2d Cir. 1975). Pursuant to the remand evidence was taken and transcribed and forwarded to this court.

The evidence taken consisted solely of the testimony of appellant’s counsel. He testified that after receiving the first notice of costs due he contacted the office of the clerk of court and requested that the amount be deducted from the cash deposit on hand which was declined. He then received a letter from the clerk of court dated April 8, 1975, stating that payment had not been received, that the time was getting close, and requesting that appellant either send a check or send an order asking for an extension of time. Counsel had a notation in his files that be mailed his trust account check number 200 on April 11. Counsel testified he signed the check and handed it and an envelope addressed to the clerk to his secretary with instructions to mail it. He could not testify that the check was actually mailed. Counsel testified the secretary, who no longer worked for him, was amenable to subpoena but she was not called as a witness. There was no letter of transmittal written. No action was taken to follow up mailing or receipt of the check for costs.

LSA-C.C.P. Art. 2161 provides that an appeal shall not be dismissed because of any irregularity, error or defect unless it is imputable to the appellant. The cases hold that where the record is not timely lodged in the Court of Appeal because of nonpayment of costs and fees for reasons imputable to the negligence, error, or fault of the appellant, the appeal is subject to dismissal. Huff v. Caldwell, 297 So.2d 463 (La.App. 2d Cir. 1974).

The testimony of plaintiff’s counsel falls short of proving that the check for costs was mailed to the clerk. The secretary was not called as a witness to testify that the check was actually mailed although she was amenable to subpoena. Plaintiff’s counsel testified that after he handed the envelope and check to the secretary he “promptly forgot about it” and “dismissed it from my mind”. The matter of payment or receipt was not checked on or followed up until after the motion to dismiss was filed more than one month after the return day and after the check was supposedly mailed. There is nothing in the record to indicate that payment of costs has been made or tendered even as of this date several months later.

We hold the nonpayment of costs and fees in this case was due to the fault of the appellant. The record not having been timely filed for reasons imputable to the fault of appellant, the appeal, under the jurisprudence, must be dismissed.

For the reasons assigned, the appeal is dismissed. Costs are assessed to the appellant.

Appeal dismissed.