author: LOTTINGER, Judge.

text:
    The BOARD OF TRUSTEES OF the EAST BATON ROUGE MORTGAGE FINANCE AUTHORITY, acting as the Governing Body of Said Authority v. ALL TAXPAYERS et al.
    No. 12113.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Steve E. Hicks, John H. Taylor, Parish Atty., Joseph F. Keogh, Baton Rouge, of counsel for plaintiff appellee.
    Jonathan C. Harris, Baton Rouge, of counsel for defendant All Taxpayers, et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This appeal arises out of the trial court’s denial of a motion to compel delivery of funds in the hands of the garnishee, and recalling, vacating, and setting aside a rule against the clerk of court for refund of cost deposits. The motion to compel and the rule for refund were brought by Jonathan Harris, one of the defendants in the original suit, Board of Trustees of the East Baton Rouge Mortgage Finance Authority, Acting as the Governing Body of said Authority v. All Taxpayers, et al., 336 So.2d 306 (La.App. 1st Cir. 1976), wherein both the trial court and this court found in favor of the defendants and assessed court costs against the plaintiff. This judgment is now final.

In attempting to execute on his judgment the defendant filed a petition for garnishment against the attorneys for the plaintiff of the original suit. Based on interrogatories in the garnishment proceeding, defendant, plaintiff-in-rule, requested a motion to compel delivery of funds to the sheriff which were in the hands of the attorneys. Along with the garnishment proceeding, Harris also filed a rule against the clerk of court for refusal to refund his security of cost deposits.

On appeal, Harris argues that the trial judge erred in (1) failing to order the garnishee to deliver the funds held for the original plaintiff, (2) holding the garnishee to have a lien or right of retention affecting the cash deposit against the seizing creditor, (3) failing to decree the garnishee not to be entitled to the attorney fee deposit provided by LSA-R.S. 13:3927, and (4) failing to order the clerk of court to refund his cost deposits.

The trial judge, in denying the motion to compel delivery of funds and recalling, vacating and setting aside the rule for refund, assigned oral reasons for judgment; however, the record is void of any transcribed oral or written reasons.

ERRORS NOS. 1 & 2

In attempting to execute on a judgment, it must first be established that the party requesting the issuance of a writ of fieri facias is a judgment creditor based on a valid and final judgment. This court views the defendant-Harris as a judgment creditor for the court costs assessed against the plaintiff, the judgment debtor, to the extent of funds expended by Harris.

Cases are too legion to require citation that a successful plaintiff who is awarded a money judgment along with the assessment of court costs is entitled to the collection of a monetary amount equal to the money awarded plus the court costs the plaintiff expended in litigating the matter. The same must hold true for a successful defendant where the plaintiff is cast for costs. The award of court costs against the judgment debtor is a money judgment in favor of that party who incurred court costs in participating in the litigation.

Since Harris expended court costs and was eventually successful, then the assessment of court costs against the plaintiff is in and of itself a money judgment against that plaintiff executable by Harris.

Upon concluding that the plaintiff-in-rule has a money judgment for court costs, the issue then is whether the garnishee has in his possession or under his control property belonging to the judgment debtor which is subject to seizure under a writ of fieri facias. LSA-C.C.P. art. 2411. An attorney at law who possesses property for his client is subject to garnishment proceedings by the judgment creditor. White v. Bird, 20 La.Ann. 188 (1868), Shanghnessy v. Fogg, 15 La.Ann. 330 (1860), 38 C.J.S. Garnishment § 58 (1943).

In Butchers’ Union Slaughter-House & Live-Stock Landing Co. v. Crescent City Live-Stock Landing & Slaughter-House Co., 41 La.Ann. 355, 6 So. 508 (La.1889), our early Supreme Court analyzed the right of an attorney to funds placed in his hands in the common law terms of a “solicitor’s retaining lien”. Under the common law, there are two kinds of attorneys’ liens: (1) a charging lien, the right to compensation for services from the funds or judgment which the attorney has recovered for the client because of his professional services rendered and (2) a retaining lien, the right to retain possession of a client’s documents, money, etc., until paid for his professional services. 7 C.J.S. Attorney and Client § 207 et seq. (1937).

The right of retention has also been recognized in the civil law and extended to mandataries or administrators of affairs for expenses incurred on behalf of another. Planiol, Civil Law Treatise (An English Translation by the Louisiana State Law Institute), vol. 2, no. 2514 et seq.

Louisiana has provided for both the charging lien and retaining lien under LSA-R.S. 9:5001 and LSA-C.C. arts. 3022 and 3023. LSA-R.S. 9:5001 embodies the same characteristics and effects as that of a charging lien in the common law and under LSA-C.C. arts. 3022 and 3023 interpreted in pari materia by the court in Butchers’ Union, supra, establishes the retaining lien for the attorneys’ fees.

Appellant argues that for the attorneys’ fees to be set-off, they must be liquidated prior to the garnishment. We disagree. In Butchers’ Union, supra, the court’s interpretation of LSA-C.C. art. 3023 states that:

“The debts referred to in the final clause of article 3023, and which must be liquidated in order to be offset, are obviously debts other than such commissions or fees.”

It is clear from the answers to the interrogatories that the Authority is indebted to the attorneys for their fees, and thus the trust deposit being held by the attorneys for the judgment debtor is subject to retainage in payment of fees, though they are not liquidated. LSA-C.C. arts. 3022 and 3023.

This Court recognizes the well established principle of law that a garnishing creditor acquires no greater right against the garnishee than the judgment debtor would have had if he had sought recovery directly against the garnishee. Oakey v. Mississippi and Alabama Railroad Company, 13 La. 567 (1839); Walker v. Townsend, 127 So.2d 224 (La.App. 3rd Cir. 1961); 38 C.J.S. Garnishment § 176 (1943).

Therefore, since we have concluded that the attorney-garnishee can retain those funds in his possession as against the client, judgment debtor, the same is true as against the garnishor, and thus there is no error on the part of the trial judge in denying garnishment.

ERROR NO. 3

LSA-R.S. 13:3927 provides:

“Whenever a plaintiff suing out a writ of garnishment shall apply to the court for the issuance of such writ, the plaintiff shall deposit with the clerk of court the sum of fifteen dollars, as a fee for the attorney for the employer who answers such interrogatories. This sum may be charged and collected as other costs. If no answer is filed by the garnishee, within the time provided by law, the attorney’s fee so deposited shall be returned to the seizing creditor. If the court in its discretion should rule that no fee should be charged to the costs by such attorney for the employer, the fee shall likewise be returned to the seizing creditor. If the court should rule that a fee greater than fifteen dollars should be assessed, the court may fix the amount of such fees, which shall be charged to the costs of the suit.”

This particular section is found in that part of Title 13 entitled Garnishment of Wages, Salaries and Commissions. The fee to be awarded at the discretion of the trial court is “for the attorney for the employer who answers such interrogatories”. The title of Act 181 of 1932, Regular Session, the Source of LSA-R.S. 13:3927 reads as follows:

“Providing the procedure by which the non-exempt portion of all wages, salaries, commissions or other compensation of employees of every nature and kind, whether skilled or unskilled, may be seized and garnisheed; providing for a continuing garnishment until judgment debts are liquidated; providing for the procedure and rights of the parties where the judgment debtor is indebted unto the garnishee; providing for the hearings to be had before courts of competent jurisdiction and the nature of the judgments to be rendered by such courts and the manner in which payments shall be made under such garnishment process; and providing for a fee to be paid as costs for the attorney answering garnishment interrogatories.”

We are of the opinion that the legislature only intended to concern itself with the garnishment of “wages, salaries, commissions or other compensation of employees”, and thus, LSA-R.S. 13:3927 cannot act as authority for the awarding of a fee to the attorney for the garnishee answering interrogatories unless the garnishee is the employer of the judgment debtor.

The well established rule is that attorney fees are not recoverable absent contract or statutory authority. We have not been cited any authority, nor do we know of any allowing the awarding of attorney fees for the answering of interrogatories in connection with garnishment, other than LSA-R.S. 13:3927. Necessarily then, it must follow that no fee is due for the answering of these interrogatories, and the fifteen dollars deposited for such fee shall be returned to the appellant.

ERROR NO. 4

LSA-R.S. 13:843 recognizes that the clerk of court may demand security from the party litigant primarily responsible for the costs incurred. Normally this is the plaintiff even though the defendant may have been assessed all costs. In Stewart v. Avery, 341 So.2d 590 (La.App. 2nd Cir. 1977), our brethren on the Second Circuit stated:

“The casting of defendants with costs in a signed judgment does not operate to relieve the plaintiff from his primary liability to the Clerk of Court for accrued cost. The effect is only to place the ultimate liability upon the party cast, and to allow plaintiff to obtain reimbursement for his cost by execution of his judgment.
“This result is essential. The Clerk must have the right to hold plaintiff, even after judgment assessing costs has been rendered, in order to provide maximum assurance that the court costs will be paid. There is always the very real possibility a defendant judgment debtor cast for cost will be insolvent or reluctant to pay (as was the case here). These are risks which must be assumed by the party provoking the lawsuit, and not by the Clerk.
“Further, the right to collect the costs under the terms of the judgment belong to the party in whose favor it was rendered.”

This case dealt with a rule brought by the clerk under LSA-R.S. 13:843 in order to obtain accrued costs from the plaintiff even though the defendant was assessed costs.

The appellant-Harris by enlisting as defendant and provoking an appeal to this court became the party primarily responsible for certain costs. Apparently all costs due the clerk of court have been paid, but since the appellee has been assessed all costs, defendant, plaintiff-in-rule, seeks a refund from the clerk of court for those costs which he has paid.

We know of no rule, nor do we deem to establish one herein, that a judgment casting one party for costs operates as a mandate to the clerk of court to refund to the party not assessed costs, the costs advanced.

Clerks’ offices operate on self generated funds collected in the form of fees. These funds are used to pay salaries as well as normal operating expenses. Included in the fees collected are those fees due the sheriffs’ offices and court reporters. The clerks’ offices necessarily then do not retain these fees collected, but merely pass them on. If the clerk would be required to refund costs paid to the party not assessed without receiving from the party assessed these same costs, it is more probable than not that the clerk’s office would operate at a deficit.

The solution to the party not assessed for costs obtaining a refund of costs he has paid is that suggested by Stewart v. Avery, supra, execution of the judgment against the party assessed for costs. Therefore, we find no error on the part of the trial judge in refusing to order a refund.

Therefore, for the above and foregoing reasons the judgment of the trial court is amended to order the return of the fifteen dollar deposit made in connection with the garnishment, and as amended it is affirmed at appellant’s costs.

AMENDED AND AFFIRMED.

      . McCollister, Belcher, McCleary, Fazzio, Mixon, Holiday and Jones (now McCollister, McCleary, Fazzio, Mixon, Holiday and Jones).

      . LSA-R.S. 9:5001:
      “A special privilege is hereby granted to attorneys at law for the amount of their professional fees on all judgments obtained by them, and on the property recovered thereby, either as plaintiff or defendant, to take rank as a first privilege thereon.”
      LSA-C.C. Art. 3022:
      “The principal ought to reimburse the expenses and charges which the agent has incurred in the execution of the mandate, and pay his commission where one has been stipulated.
      “If the>-e be no fault imputable to the agent, the principal can not dispense with this reimbursement and payment, even if the affair has not succeeded; nor can he reduce the amount of reimbursement, under pretense that the charges and expenses ought to have been less.”
      LSA-C.C. Art. 3023:
      “The mandatary has a right to retain out of the property of the principal in his hands, a sufficient amount to satisfy his expenses and costs.
      “He may even retain, by way of offset, what the principal owes him, provided the debt be liquidated.”

      . LSA-R.S. 13:843:
      “The clerk of court may demand security for costs at the time the suit is filed.
      “After any cost advance furnished under R.S. 13:842 has been exhausted, all accrued costs shall be paid by the party primarily responsible therefor, or by the surety on any bond for costs furnished by him, upon receipt of the clerk’s demand for payment thereof supported by an itemized account of these accrued costs approved by the judge. If these accrued costs are not paid within ten days of the demand for payment, judgment therefor may be rendered against the party, and against the surety on any cost bond furnished by him, by rule returnable not less than two judicial days from the date of service upon the defendants in rule and the clerk may employ an attorney at law to assist him in filing and trying said rule or rules, and the fee of the attorney employed for that purpose shall be fixed by the district judge before whom the rule is tried and shall be taxed as costs along with the cost of hearing the rule. As amended Acts 1958, No. 349, § 1.”


source: Caselaw Access Project

license: Public Domain

text:
    Zola Mae David FONTENOT et al. v. Charles J. O’BRIEN et al.
    No. 12116.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    William C. Bradley, Baker, of counsel for plaintiff -appellant, Zola Mae David Fon-tenot, et al.
    James A. George, Baton Rouge, of counsel for defendant-appellee, Charles J. O’Brien, Jr.
    Donald T. W. Phelps, Baton Rouge, of counsel for third party defendant-appellee, Inter. Harvester Corp.
    Paul H. Spaht, Baton Rouge, of counsel for third party defendant-appellee, Frue-hauf Corp.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto. From a judgment sustaining a plea of prescription to an amended petition adding a defendant, plaintiffs have appealed.

Plaintiffs filed suit for the wrongful death of Hampton Lee Fontenot as a result of a collision between the tractor-trailer truck the decedent was driving and a cow. At the time of the accident, the decedent was employed by Matlack, Inc., and driving its truck. Named defendants were six executive officers of Matlack, Inc., two unnamed executive officers and an unnamed insurer.

This accident happened on September 4, 1971. Suit was filed on September 1, 1972, generally alleging that the defendants provided the decedent with an unsafe truck. On March 24, 1977, the original named defendants filed a third party petition against International Harvester Company alleging it was the manufacturer and/or distributor of the truck the decedent was driving at the time of his death, and same was unsafe and defective. Then on October 25, 1977, plaintiffs filed an amended petition naming, for the first time, International Harvester Company as a defendant and alleging its in solido liability with the named and unnamed executive officers and the unnamed insurer. To the amended petition, defendant, International Harvester Company, filed the peremptory exception of prescription which was maintained by the trial court.

A suit for wrongful death under LSA-C.C. art. 2315 must be brought within one year from the date of the death of the decedent since tort actions prescribe in one year. LSA-C.C. art. 3536.

It is now well established that the filing of suit by plaintiff against the original defendant will interrupt the one year prescriptive period of LSA-C.C. art. 3536 as to those defendants later joined and alleged to be solidarily liable. Wick v. Sellers, 309 So.2d 909 (La.App. 3rd Cir. 1975), application denied 313 So.2d 828 (1975).

In addition to citing Wick v. Sellers, supra, plaintiffs-appellants also cite LSA-C.C. art. 2097, which provides:

“A suit brought against one of the debtors in solido interrupts prescription with regard to all.”

Defendant-International argues that there is no basis upon which it can be held a joint tortfeasor solidarily liable with the original defendants, in that the claimed acts of negligence of International and the executive officers have no connexity. It contends that International is alleged to have been negligent in the manufacture and design of certain portions of the truck, whereas the executive officers are alleged to have been negligent in failing to provide a safe place to work. In support thereof, it cites Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 (La. 1975).

After carefully studying both the original petition and the amended petition naming as an additional defendant, International, we cannot agree with defendant-appellee that plaintiffs only contend that the original defendants failed to provide a safe place to work. The original petition specifically alleged at paragraph 9(a) that the original defendants were negligent “in knowingly, willfully or negligently providing the said Hampton Lee Fontenot with a truck tractor to drive, in connection with his said employment wherein the brakes, steering, and other mechanical portions of said truck were unsafe, and/or inherently dangerous”. We find a connexity between the alleged negligence of the original defendants and the defendant-international, and as pleaded, the original defendants and International must be considered as joint tortfeasors.

We do not find Trahan v. Liberty Mutual Insurance Company, supra, controlling. Each case must be decided on its own facts. In Trahan, after suits by the widows of deceased workmen killed in a salt mine against executive officers and their insurers were dismissed, widows of two of the deceased filed suits against the same insurance companies alleging the negligence of fellow deceased workers. The Supreme Court disposed of LSA-C.C. art. 2097 by finding that the insurer is only liable if the insured is liable, and thus since the original defendant executive officers were not liable, the first suit did not interrupt prescription.

However, LSA-R.S. 9:5801 gave to the court more trouble, for it is not limited to solidary obligators. It in part provides that:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors or interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue.”

In maintaining the exception, its decision turned on the clause “the cause of action” as found in LSA-R.S. 9:5801. At 314 So.2d 353 the court said:

“A cause of action in tort has no identity independent from the defendant upon whose fault it is based. In the first suit the cause of action was based upon, and it encompassed, only the negligence of the six named executive officers. In the second suit, the cause of action is based upon the negligence of Chrzanowski [one of the deceased].”

It was not alleged that the executive officers were solidarily liable with the deceased-defendants in the second suit, thus the court found that the second suit did not have the same cause of action as the first. That, however, is not the case before this court.

Therefore, we are of the opinion that the instant situation is controlled by LSA-C.C. art. 2097 and Wick v. Sellers, supra, Patin v. Stockstill, 315 So.2d 868 (La.App. 1st Cir. 1975), Hooper v. Wilkinson, 252 So.2d 137 (La.App. 3rd Cir. 1971), Sharp v. Massey-Ferguson, Inc., 153 So.2d 508 (La.App. 1st Cir. 1963) and Franks v. City of Alexandria, 128 So.2d 310 (La.App. 3rd Cir. 1961). The trial judge was therefore in error in maintaining the peremptory exception of prescription.

Therefore, for the above and foregoing reasons the judgment of the trial court is reversed and this matter is remanded to the trial court. All costs of this appeal are to be paid by defendant-appellee.

REVERSED AND REMANDED.


text:
    WEST BATON ROUGE PARISH SCHOOL BOARD v. T. R. RAY, INC.
    No. 12137.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Writ Granted Sept. 14, 1978.

      Joseph W. Cole, Jr., Asst. Dist. Atty., Port Allen, counsel for plaintiff-appellee.
    William R. D’Armond, Sanders, Downing, Kean & Cazedessus, Baton Rouge, counsel for defendant-appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is a suit seeking an injunction prohibiting the defendant from submitting a claim to arbitration. From a judgment preliminarily enjoining the defendant, its agents, officers, and attorneys from submitting or attempting to submit its alleged claims to arbitration, defendant has appealed.

The contract in question is between the plaintiff, West Baton Rouge Parish School Board (School Board), and defendant, T. R. Ray, Inc., for the furnishing of architectural services for the new Port Allen High School. In 1975, the School Board decided to build a new high school at Port Allen, and wished to use the services of an architect who lived in West Baton Rouge Parish. Mr. Ronald J. Couvillon, chief architect of T. R. Ray, Inc., approached the School Board and was ultimately successful in obtaining the contract for T. R. Ray, Inc. Mr. Couvillon has been a registered architect in the state of Louisiana since 1958. The contract was signed on August 7, 1975, and by December, 1976, the plans and specifications were complete and put out for bid by contractors. On June 1,1977, Mr. Couvillon left the employ of T. R. Ray, Inc., and shortly thereafter, the School Board terminated the contract. At the time of termination the plans and specifications were complete, and the construction work had actually begun. What was left to be performed under the contract was supervision of construction.

On July 14, 1977, the defendant made formal demand on the School Board for $41,117.53 due it under the contract. The School Board failed to pay, and on September 30 the defendant demanded arbitration. This proceeding seeking the injunction was filed on October 24, 1977.

The trial judge concluded that sinee the term “person” usually includes corporations, LSA-R.S. 1:10, “corporation” was included in the term “person” as used in LSA-R.S. 37:145 which provides:

“No person shall practice architecture in this state or use the title ‘architect’, or display or use any title, sign, advertisement, or other device to indicate that such person practices or offers to practice architecture, or renders architectural services, or is an architect, unless such person shall have secured from the board a certificate of registration and license in the manner hereinafter provided, and shall thereafter comply with the provisions of the laws of the State of Louisiana governing the registration and licensing of architects.”

The trial judge continued that “if corporations cannot be licensed because they are not in their nature subject to examination and therefore unable to qualify, then they are prohibited from practicing architecture. To hold otherwise would be to say that corporations are free to practice any profession without the need or restriction of incorporation as professional corporations with limited powers. There would be no need in Louisiana for statutes dealing with professional law corporations, professional medical corporations, etc.”

The Louisiana State Board of Architectural Examiners adopted rules pursuant to the authority granted to it under LSA-R.S. 37:144 and 147, of which one rule provides that a “partnership or a corporation may be admitted to practice architecture in the state of Louisiana if two-thirds (%) of the partners (if a partnership) or two-thirds (%) of the officers, directors and stockholders (if a corporation) are licensed under the laws of this state to practice either architecture or engineering”. The trial judge concluded that the word “admitted” as used in the adopted rule was ambiguous, however, he found that the defendant corporation did not satisfy the requirements of the rule, and thus pretermitted any discussion as to whether the Board of Architectural Examiners were within their authority in adopting such rules.

Thus the court held that since the defendant did not have the authority to practice architecture as a corporation, the contract entered into between plaintiff and defendant for architectural services was null and void, and thus issued the injunction.

In reviewing the evolution of professional corporations, this Court has determined that only the legal profession was ever specifically prohibited the right to incorporate. Act 163 of 1940, Regular Session.

The general rule is that a corporation can perform any lawful business activity which has not been prohibited to it or is not governed by special laws. LSA-R.S. 12:22.

The definition of an architect is “a person who is technically and legally qualified to practice architecture”, and the practice of architecture is defined as:

“ * * * the performance of professional services embracing the safe, healthful, scientific and aesthetic planning, design and specifications for and the overseeing of the construction of any public or private building or buildings.” LSA-R.S. 37:141

We agree with the trial court that a corporation cannot “practice architecture” since the clear intent of the legislature is that only natural persons having the ability to qualify and pass an examination could be licensed to practice architecture. LSA-R.S. 37:146.

Apparently the trial judge viewed LSA-R.S. 37:141 et seq., as special laws governing the practice of architecture and thus prohibiting incorporation for such purposes as the providing of architectural services. In examining Title 37 of the Revised Statutes so as to determine its impact on the corporation laws, it is clear that the legislature did not intend the professions and occupations listed in the Title be barred from incorporating. Title 37 is primarily concerned with establishing certain minimum standards which various professionals must meet before they are licensed to practice in Louisiana, and not with whether those professions can incorporate.

On appeal, the appellant argues that the contract entered into between the School Board and itself was for the furnishing of architectural services to be performed by a licensed architect, and thus is not null and void.

This Court sees a difference between the providing of professional services of a licensed architect and the actual practice of architecture. T. R. Ray, Inc. did not hold itself out to be an architect but to be the supplier of architectural services, such services to be performed by a licensed architect. There is no prohibition or specific law governing the providing of professional services of an architect, thus we find no bar to T. R. Ray, Inc., a duly incorporated entity, from providing those services which the School Board contracted for.

T. R. Ray, Inc. is not an individual attempting to practice architecture in violation of LSA-R.S. 37:141 et seq., as was the case in Jary v. Emmett, 234 So.2d 530 (La. App. 3rd Cir. 1970) writ refused 256 La. 374, 236 So.2d 502 (1970); but is merely contracting to provide architectural services which must be performed by a Louisiana registered architect. If the services rendered are not performed by an individual licensed to practice architecture in this state then under Jary, supra, no fee could be collected even on a quantum meruit theory.

Where a person licensed in this state to practice architecture performs the work of an architect on a contract which provides for the furnishing of architectural services, the validity of the contract cannot be attacked for the lack of capacity of the contracting party to practice architecture.

Since we hold that T. R. Ray, Inc. has the capacity to contract to provide architectural services, we now determine whether any other cause might invalidate this contract ab initio. LSA-C.C. art. 1950 provides:

“When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.”

The intent of the School Board in executing this contract was to obtain architectural services to be provided by T. R. Ray, Inc. The facts presented reveal no error as to the person or cause nor the practice of any fraud; therefore, this Court finds the contract to be valid ab initio, and thus, the arbitration clause is effective. George Engine Co., Inc. v. Southern Shipbuilding Corporation, et al., 350 So.2d 881 (La.1977).

Therefore for the above and foregoing ' reasons the judgment of the trial court is reversed, and IT IS HEREBY ORDERED ADJUDGED and DECREED the injunction granted be recalled, vacated and set aside. Appellee is to pay all costs of this appeal as provided by law.

REVERSED AND RENDERED.


author: EDWARDS, Judge.

text:
    Catherine E. SMITH, Individually and on behalf of her minor daughter, Sharon E. Smith v. Robert CASTLE and Louise A. Keelen.
    No. 12106.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Joel B. Dickinson, Baton Rouge, of counsel for plaintiff-appellant Catherine E. Smith, Ind., etc.
    John P. Calmes, Jr., Baton Rouge, of counsel for defendant-appellee Robert L. Castle.
    Michael O. Hesse, Legal Aid Society of Baton Rouge, Baton Rouge, of counsel for defendant-appellee Louise Keelen.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Catherine E. Smith, individually and on behalf of her minor daughter, Sharon E. Smith, instituted this suit to recover damages for personal injuries sustained by the daughter, when the motorcycle on which she was a passenger collided with a turning automobile. Named as defendants are the driver of the motorcycle, Robert L. Castle, and the driver of the automobile, Louise A. Keelen.

The accident occurred at approximately 8:00 p. m. on the evening of August 21, 1976, at the intersection of West McKinley Street and Nicholson Drive in Baton Rouge. Immediately prior to the accident, Sharon and a companion, Karen T. Scott, were walking on McKinley Street. The two girls were approached by Castle, who was riding his motorcycle along the same street, and were offered a ride to Sharon’s house. They accepted and got on the motorcycle, with Karen sitting behind the driver and Sharon, as the third rider, sitting behind Karen. The motorcycle then proceeded in a westerly direction along West McKinley for a distance of approximately fifty yards until it reached the intersection of Nicholson Drive. Upon entering the intersection, the motorcycle collided with the automobile driven by Keelen, which was traveling eastbound on West McKinley and in the process of making a left hand turn onto Nicholson.

The trial court found that both defendants were negligent, Keelen by improperly making a left hand turn and Castle by speeding, and that the negligence of both defendants contributed to the resulting collision. However, the trial court also found that Sharon had assumed the risk of the accident by riding as one of three persons on the motorcycle and was barred from recovering for her injuries. Judgment, was rendered dismissing plaintiff’s suit. Only plaintiff has appealed.

Initially, we find, despite the many conflicts in the testimony, that there is ample evidence to support the trial court’s determination that both defendants were negligent. There is no manifest error in this instance.

Regarding the defense of assumption of the risk, we find the following statement of the Supreme Court in McInnis v. Fireman’s Fund Insurance Company, 322 So.2d 155, 157 (La.1975) apropos:

“It is fundamental that, in order to assume a risk, one must knowingly and voluntarily encounter a risk which caused him harm. Plaintiff must understand and appreciate the risk involved and must accept the risk as well as the inherent possibility of danger because of the risk. Assumption of risk is an affirmative defense which must be specially pleaded. The burden of proving this defense is upon the defendant.” (footnote omitted).

Relying on this criterion, what “risks,” if any, did defendants prove were assumed by Sharon?

Sharon, quite obviously, assumed such risks as are ordinarily incident to her position on the motorcycle. This, however, as in the “outrider cases,” does not encompass the risk of any negligent operation on the part of her driver, absent a showing that she knew the driver to be drunk, incapable, careless or reckless, nor does it encompass negligence on the part of the driver of another vehicle. See Brantley v. Brown, 277 So.2d 141 (La.1973) and numerous cases therein cited. There is no evidence in the record to prove that Sharon assumed the risk of defendants’ negligence.

Counsel for Castle argues that Sharon, as the third rider, caused motorcycle steering difficulties which culminated in the collision. However, there is absolutely no evidence in the record to support this contention. Neither has there been any proof that Sharon was contributorily negligent.

We, therefore, find that the trial court improperly dismissed plaintiff’s suit.

On the issue of quantum, plaintiff’s petition itemizes her damages as: 1) medical expenses, past and future, in the sum of $1,000; and 2) general damages on behalf of the minor daughter in the sum of $10,-000.

Plaintiff did not offer any evidence to prove the amount of medical expenses incurred in connection with the accident or anticipated in the future. In fact, at the time of trial Sharon was not receiving any medical attention or on any medication for the injuries sustained in the accident. An award for medical expenses is therefore not appropriate.

Sharon suffered multiple fractures of both legs, which required the application of long legs casts on both legs. She was hospitalized for approximately two weeks. She remained in the casts for an additional period of approximately five and one-half months. During the entire period in which she had the casts on her legs, Sharon was totally incapacitated.

Based on the severity and duration of Sharon’s injuries, we believe that an award of $10,000 for general damages, the amount prayed for in the petition, is warranted.

For the above reasons, the judgment appealed is reversed; and judgment is herein rendered in favor of Catherine E. Smith, on behalf of her minor daughter, Sharon E. Smith, against the defendants, Robert L. Castle and Louise A. Keelen, in solido for the sum of Ten Thousand and No/100 ($10,-000.00) Dollars, together with interest from judicial demand until paid. All costs are to be paid by defendants.

REVERSED AND RENDERED.

      . The medical services were administered at Earl K. Long Charity Hospital, and there is no evidence of any other medical expenses at all.


text:
    Lillie Bell GOINS v. DHHR, E. A. CONWAY MEMORIAL HOSPITAL.
    No. 12138.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Leila S. Withers, Baton Rouge, for appellant.
    Walter J. Horrell, Baton Rouge, for ap-pellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

This appeal by Lillie Bell Goins seeks review of rulings by the State Civil Service Commission which: 1) dismissed, on a motion for summary disposition, her appeal from the denial of a salary step increase; and 2) denied her appeal from a thirty day suspension without pay.

Appellant is employed as a Nursing Aide II at E. A. Conway Memorial Hospital in Monroe, where she has worked for thirteen (13) years. By letter dated January 25, 1977, appellant initiated this appeal from the denial of a step increase in pay, contending that she was being discriminated against “because she is black.”

Subsequently, appellant was informed, by letter dated February 10,1977, that she was being “suspended from duty and pay for a period of thirty days beginning Monday, February 14, 1977 through Tuesday, March 15, 1977.” The reasons assigned for this action were:

“1. During your shift on the night of January 16-17, 1977, you removed and concealed the temperature sheet in use at the time and on which patients’ temperatures taken earlier in the day had been recorded.
“2. On January 19, 1977, your supervisor, Ms. Simonton, attempted to explain the reasons to you concerning the refusal to grant your merit increase. As Ms. Simonton began to speak, you got up and, as you walked out of the room, stated that you didn’t want to hear what Ms. Simonton had to say.
“3. On February 1, 1977, you were requested to take the 12:00 noon temperatures by Ms. 0. Johnson. You were placing paper bags on night stands at the time, and this was a task that is necessarily subordinate in importance to the taking of temperatures. Your reply was that you were busy and that Ms. Simon-ton, R.N., would just have to wait until you were finished.”

This letter also stated:

“Your behavior is disruptive to the orderly and efficient operation of nursing service. While the consistency of your insubordination may warrant termination, your years of service and otherwise satisfactory work has not gone unnoticed. “I take this means to inform you that insubordinate or disruptive behavior will not be condoned. Counseling in the past has apparently been unsuccessful and unless your conduct improves, your position with this facility will be terminated.”

Appellant filed a second letter of appeal on February 16, 1977, asserting that she was suspended because she had appealed the denial of the pay increase.

A hearing was held on both appeals before a referee on August 11, 1977. At the hearing the referee granted the appointing authority’s motion for summary disposition of the pay increase appeal, since appellant’s letter of appeal did not allege specific facts supporting the charge of discrimination as required by Civil Service Rule 13.11(d). Thereafter, the hearing was conducted solely on the issue of the suspension. The Commission rendered its decision on February 20, 1978, upholding the suspension.

Appellant contends that the Commission erred in denying her appeal and assigns the following specifications of errors:

1. The Commission erred in granting the motion for summary disposition in reference to the appeal from the denial of the step increase.
2. The Commission erred in not ruling on appellant’s constitutional objection to the time limits established by Civil Service Rule 13.12.
3. The Commission erred in determining that the appointing authority had established legal cause for the thirty-day suspension.
4. The Commission erred in failing to find that appellant’s suspension was predicated upon bias and discrimination rather than a rules infraction.

ERROR NO. 1

The appeal of the denial of the salary step increase was dismissed by the referee on a motion for summary disposition. The basis of the appointing authority’s motion was the failure of the appellant to allege specific facts in the letter of appeal to support the conclusion of discrimination.

In this regard, Civil Service Rule 13.11 provides in pertinent part:

“A notice of appeal must .
“(d) Contain a clear and concise statement of the actions complained against and a clear and concise statement of the basis of the appeal. Where discrimination is alleged to be a basis for appeal, specific facts supporting the conclusion of discrimination must be alleged in detail;”

Our Supreme Court has determined that Rule 13.11(d) lies within the rule-making power of the Commission and that the Rule is not unconstitutional. Smith v. Board of Commissioners of Port of New Orleans, 262 La. 96, 262 So.2d 383 (1972).

A mere statement, such as is contained in appellant’s letter, that one has been discriminated against because of color does not satisfy the requirement of Rule 13.11(d) that specific facts be alleged, nor does it afford the appointing authority an opportunity to prepare a defense. On the contrary, such a statement is nothing more than a classification of the type of discrimination alleged (e. g. sex, race, religion etc.). Accordingly, the motion for summary disposition was properly granted. See Toms v. LHHRA, 349 So.2d 941 (La.App. 1st Cir. 1977), writ denied, 351 So.2d 162 (La.1977).

ERROR NO. 2

Appellant contends that the thirty (30) day period for appealing or amending a letter of appeal, established by Rule 13.12, is a denial of her right of due process and is therefore unconstitutional.

This Court was confronted with the identical contention in Sutton v. Department of Public Safety, 340 So.2d 1092 (La.App. 1st Cir. 1976). The Court there stated, in determining the issue adversely to appellant’s contention, that the limitation was a reasonable exercise of the Commission’s rule-making powers and that the rule was not unconstitutional. We agree.

ERROR NO. 3

The Commission found that there was an adequate basis in the evidence to support the charges made against appellant as the ground for the suspension. In fact, the Commission noted that the appellant herself made admissions which established the truth of the charges.

Our examination of the record reveals that appellant’s defense was by way of explanation and excuse rather than by denial of the facts. We find that the appointing authority has conclusively established the facts and charges underlying the suspension.

Appellant, however, contends that the complained of conduct does not constitute legal cause for the disciplinary action.

This Court stated in Hamlett v. Division of Mental Health, 325 So.2d 696, 700 (La. App. 1st Cir. 1976):

“ * * * Our Supreme Court has juris-prudentially defined legal cause for disciplinary action against a classified employee as that conduct which impairs the efficiency of the public service, and which bears, a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged. * * * ”

There is ample evidence in the record, especially the testimony of Ms. Simonton, Ms. Johnson and Mr. Carlos, from which the Commission could conclude that a substantial relationship existed between appellant’s conduct and the efficient operation of nursing services at the hospital. Accordingly there existed legal cause for the disciplinary action such that the Commission’s ruling should not be disturbed. See Patrick v. Lake Charles Municipal Fire & Police Civil Service Board, 344 So.2d 1121 (La.App. 3rd Cir. 1977).

ERROR NO. 4

Finally, appellant contends that the suspension was motivated by bias and discrimination rather than a rules infraction.

There is absolutely no evidence in the record to support appellant’s contention. . Neither is there any proof, aside from appellant’s uncorroborated testimony, that the suspension was a form of retaliation for appellant’s appeal concerning the pay increase.

For the above reasons the ruling of the Commission is affirmed at appellant’s cost.

AFFIRMED.

      . Appellant also alleged that her superior wanted to replace her with a younger white lady. This allegation was voluntarily abandoned by appellant at the hearing.


author: PONDER, Judge.

text:
    In the Matter of the Succession of James Nettles KENDRICK.
    No. 12064.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Michael H. Rubin and John Dale Powers, Baton Rouge, of counsel, for plaintiff-appellant, James Alfred Kendrick.
    Davis A. Gueymard, Baton Rouge, of counsel, for defendant-appellee, Harold Dalton Kendrick.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

One of the two forced heirs sought collation and reduction of a testamentary bequest made by his father. Plaintiff has appealed the judgment denying his claim.

The issues are: (1) the proper valuation of the two tracts of land involved, (2) the necessity of applying collation to the mortis causa donation, (3) the need to reduce the donation and (4) the proper assessment of court costs.

We amend and affirm.

James Nettles Kendrick, testator, died possessed of separate and community property including two tracts of land. Tract 1 contains 156 acres northwest of Greenwell Springs Road; Tract 2, 146 acres southeast of Greenwell Springs Road. The testator confirmed the legal usufruct over his community estate in favor of his wife, Mrs. Ella F. Kendrick, and left Tract 1 to Harold Dalton Kendrick and Tract 2 to James Alfred Kendrick, both subject to the above usufruct. Both the named legatees of the property were also named as the residuary legatees of the remainder.

It has been stipulated that $5,600.00 of community property was originally omitted from the succession. The court raised substantially the values assigned to the succession property.

The court reached values of $1,400.00 per acre for Tract 1 and $1,000.00 per acre for Tract 2. Appellant complains that the valuation of both is in error. He argues that although the trial court found the highest and best use of Tract 1 to be for residential purposes, he erred in valuing the land as “raw acreage”. Appellant only made a showing that the highest and best use of the property was for residential purposes. He produced no evidence of acts or immediate intentions of any of the owners to develop the property. Thus, valuing the land according to what a developer would pay in order to develop this land is correct. Recreation and Park Commission for Parish of East Baton Rouge v. Cobb, La.App., 333 So.2d 290 (1st Cir. 1976).

Appellant argues that the trial court erred in placing a $1,000.00 per acre value on the second tract since it is subject to inundation. There is evidence in the record to support the conclusion of the trial judge. Thus, we are constrained not to substitute our own. Pierre v. Landry, La., 341 So.2d 891 (1977).

Appellant next asserts that the bequest to his brother is subject to reduction since the value of his half of the residual estate and of the tract bequeathed to him does not satisfy his legitime. Appellant would be correct were he correct in his assertion that the trial court erred by over valuing the tract bequeathed to him. However, since we have upheld the lower court’s findings on the value, we find no error in denying the reduction sought.

Appellant contends that the bequest of Tract 1 in favor of Harold Dalton Kendrick is subject to collation even though it was a mortis causa donation. Appellant’s argument is first, that the trial judge erred in finding that this was a partition by an ascendant among his descendants and not subject to collation; second, the will exhibits the testator’s intent to treat his sons equally; third, that the statement in Jordan v. Filmore, 167 La. 725, 120 So. 275 (1929) that collation does not apply to donations mortis causa is dictum and incorrect.

LSA-C.C. Art. 1724 provides as follows: “Fathers and mothers and other ascendants may make a distribution and partition of their property among their children and legitimate descendants, either by designating the quantum of the parts and partitions [portions] which they assign to each of them, or in designating the property that shall compose their respective lots.”

LSA-C.C. Art. 1411 provides that:

“If the partition has been regulated by the father among his children, no restitution can take place, even in favor of minors, when, by such partition, one or more of the heirs have received more than the others, unless that overplus should exceed the portion which the father had a right to dispose of.”

Appellant argues that the disposition by testator cannot be a partition since LSA-C.C. Art. 1289 requires ownership in common before an action of partition can be had. The direct answer is that the code in Arts. 1724-1733 has provided a special kind of partition, that is, by ascendants to descendants, and the definition need not exactly apply. The provision in Art. 1725 that the partition can be made by testament especially negates the requirement of common ownership for this kind of partition.

The argument that Art. 1727 requires the application of collation to these partitions does not persuade us. The phrase “are subject to the same rules”, we believe, refers to testaments. Furthermore, Arts. 1411 and 1730 limit the application of any attack on any excess to that of invasion of the forced portion. If Art. 976 be applicable to these partitions at all, the special Arts. 1724 and 1411 would be applicable rather than the general articles on collation.

LSA-C.C. Article 1230 and 1233 state:

“Art. 1230. Collation must take place, whether the donor has formerly [formally] ordered it, or has remained silent on the subject; for collation is always presumed, where it has not been expressly forbidden.”
“Art. 1233. The declaration that the gift or legacy is intended as an advantage or extra portion, may be made in other equivalent terms, provided they indicate, in an unequivocal manner, that such was the will of the donor.”

Thus, if the testator clearly evidenced his will that the bequest be an extra portion, the judgment denying collation must be affirmed.

Mr. Kendrick stated in his will at paragraphs 3, 4, and 6:

“HI.
I leave and bequeath to my son, Harold Dalton Kendrick, all of the real property I die possessed of located north and west of Greenwell Springs Road, Parish of East Baton Rouge, Louisiana, subject to the usufruct of my wife, Ella F. Kendrick.”
“IV.
I leave and bequeath to my son, James Alfred Kendrick, all of the real property I die possessed of located south and east of Greenwell Springs Road, Parish of East Baton Rouge, Louisiana, subject to the usufruct of my wife, Ella F. Kendrick.”
“VI.
Subject to the foregoing, I bequeath all the rest and remainder of property that I may own at my death to my children, Harold Dalton Kendrick and James Alfred Kendrick, share and share alike, reserving to my wife, Ella F. Kendrick, the usufruct thereof.”

The testator, in unequivocal terms, has declared his intention to treat his sons separate and unequal as regards the two tracts of land and equal only as to the remainder. Collation is not required.

The attack upon the conclusion in Jordan v. Filmore that collation does not apply to donations mortis causa joins that of others. However, the fact remains that the case has been followed and has not been overruled.

The trial court also imposed court costs upon appellant feeling that LSA-C.C. Art. 1731 so mandated.

The executors of the estate are at least partially responsible for the filing of this action since they undervalued the property in the original descriptive list and they omitted some $5,600.00 of other assets. Because of this we amend the judgment of the trial court and hold both parties to share equally the costs in the lower court.

The judgment appealed from is so amended and as amended is affirmed. The costs of this appeal is to be borne equally.

AMENDED AND AFFIRMED.

      . LSA-C.C. Art. 1289
      “No one can be compelled to hold property with another, unless the contrary has been agreed upon; any one has a right to demand the division of a thing held in common, by the action of partition.”
      See also Arts. 1291-1293.

      . LSA-C.C. Art. 1727:
      “Those made by testament must be made in the forms prescribed for acts of that kind, and are subject to the same rules.”

      . LSA-C.C. Art. 1730:
      “Partitions, made by ascendants, may be avoided, when the advantage secured to one of the coheirs exceeds the disposable portion.”

      . LSA-C.C. Art. 976:
      “All the rules relating to the acceptance, renunciation or partition of successions, the collation of goods and payment of debts, contained in this title, are applicable to testamentary as well as to intestate successions.”

      . Art. 976 is in Title I, of Successions Chapter 6, In What Manner Successions Are Accepted and How They are Renounced. Arts. 1724-1733 comprise Chapter 7, Of Partitions Made by Parents and Other Ascendants Among Their Descendants, of Title II, Of Donations Inter Vivos (Between Living Persons) and Mortis Causa (In Prospect of Death)

      . See 34 La.L.R. 219, Succession of Higgins, La.App., 275 So.2d 447 (4th Cir. 1973).


text:
    Lawrence WILSON, Individually, etc., et al. v. Charles Henry VOSS, Jr., et al.
    No. 12107.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.

      Evans H. Scobee, Baton Rouge, of counsel for plaintiff-appellant Lawrence Wilson et al.
    Edward W. Gray, Baton Rouge, of counsel for defendant-appellee Charles Henry Voss, Jr., et al.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is an action against lessors for damages which resulted from a fire at the leased premises. The lower court found that plaintiffs had assumed the risk of the harm; plaintiffs appealed.

The issues are: the status of the plaintiffs, the strict liability of the defendants, assumption of risk, contributory negligence, and the exclusion of evidence of emotional distress, mental anguish and inconvenience.

We affirm.

Rita Robertson leased a home in Baton Rouge from defendants’ agents. Approximately three months later one of the plaintiffs, Mrs. Wilson, moved into the home with Ms. Robertson. Later, Mr. Wilson moved into the leased premises to join his wife and Ms. Robertson moved away. The Wilsons continued to live on the premises until the fire. All the rent that was paid by the Wilsons was paid by them in the name of Rita Robertson.

The lease contained no prohibition of the arrangement; it was permissible for Ms. Robertson to transfer her rights and duties as lessee to the plaintiffs. C.C. Art. 2725.

Plaintiffs argued that the leased premises was defective because of a malfunctioning hot water heater and that the defect was the cause of their harm. Mrs. Wilson testified that on approximately seven occasions she had seen the hot water heater ignite with a burst of flames well outside its structure. Mr. Wilson testified that he had seen this same event on at least one occasion and had been informed of the others.

Expert testimony indicated that the flames may have reached six to eight inches outside the hot water heater as a result of its poor condition. These flames evidently reached some clothing or other flammable material. It was proven that the hot water heater would not have produced flames sufficient to start the fire if it had not been defective and that the defect was a cause of the fire.

LSA-C.C. 2695 subjects lessors to strict liability to their tenants for the damages caused by a dangerous defect in the thing leased. See King v. Allstate Insurance Co., 224 So.2d 42, 43 (La.App. 1st Cir. 1969); Tewis v. Zurich Insurance Co., 233 So.2d 357, 360 (La.App. 1st Cir. 1970); Pollard v. Roberts, 306 So.2d 801, 804 (La.App. 2d Cir. 1975). There is no requirement that the lessor know of the defect and liability is imposed once the defect is shown to be a cause of the harm. Thus, absent a defense, the lessors would be liable to the plaintiffs.

Assumption of the risk is a defense to an action in strict liability. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971); Wunstell v. Crochet, 325 So.2d 727 (La.App. 4th Cir. 1976). However, it is narrowly restricted by two requirements: first, the plaintiff must know and understand the risk he is incurring, and second, his choice must be free and voluntary. Langlois and Pollard, supra; Laney v. Stubbs, 217 So.2d 468 (La. App. 1st Cir. 1968); Symposium on Assumption of Risk, 22 La.L.Rev. 1-166 (1961); Prosser, Law of Torts, pp. 440, 447 (4th Ed. 1971).

Both plaintiffs testified that they had seen the water heater spew out flames and that they knew it was dangerous. This proves their knowledge and understanding of the risk.

Of primary importance in the determination of voluntary choice is the existence of reasonable alternatives. Langlois, supra; Stone, Louisiana Civil Law Treatise — Tort Doctrine, at 402 (1977). Total disuse of the water heater cannot be viewed as a reasonable alternative available to plaintiffs. Mr. and Mrs. Wilson’s economic status renders less reasonable the alternatives of moving or of having the water heater repaired and deducting the costs thereof from the rent under the procedure provided in C.C. 2694.

However, the plaintiffs could have complained of the defect and requested that the hot water heater be fixed. While plaintiffs testified that they had complained to the rental agency, the trial court found more credible the testimony that no notice of any kind was ever given by the plaintiffs or their predecessor. We find no manifest error in this conclusion by the trial court.

Our determination of the issues of assumption of risk makes it unnecessary to consider the questions of contributory negligence and the exclusion of evidence.

The judgment of the trial court is affirmed. Plaintiffs are cast with all costs.

AFFIRMED.

      . LSA-C.C. Art. 2695:
      “The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”


text:
    MARATHON PIPE LINE COMPANY v. Mrs. Charlie Holcombe PITCHER.
    No. 12115.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Writ Granted Sept. 15, 1978.

      Thomas R. Blum, New Orleans, of counsel, fqr plaintiff-appellee Marathon Pipe Line Co.
    Ashton L. Stewart, Baton Rouge, of counsel, for defendant-appellant Charlie Holcombe Pitcher.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This is an expropriation suit. The district court allowed the expropriation and awarded compensation and severance damages.

Defendant-appellant takes issue with the holding that LSA-R.S. 45:254 and LSA-R.S. 19:2(9) are constitutional, with the imposition of the obligation to encase the pipeline in the future, with the fixing of the width of the entrance street at 60 feet rather than 100 feet, with the amount of severance damages and with the amount awarded for attorney’s fees. Appellee seeks a decrease in the compensation and severance damages and reversal of the award of attorney’s fees.

We affirm.

Appellee seeks to expropriate a 20 foot permanent servitude across a 35.68 acre tract of land to be used to install a 20 inch fuel pipeline in a pipeline corridor alongside two existing pipelines. One half of the servitude is within a servitude already granted and one half on unencumbered land. The highest and best use of this tract was found to be for residential subdivision purposes. A preliminary subdivision plat was filed and approved some years prior, but no development has yet taken place.

Appellant contends that LSA-R.S. 19:2(9) and 45:254 allowing appellee the right to expropriate are unconstitutional under the Constitution of Louisiana of 1974, Article 1, Section 4. The argument is that the statutes do not incorporate the constitutional requirement that private expropriation be allowed only for “public and necessary purposes”. This article’s ancestor was held to be self-executing. Angelle v. State, 212 La. 1069, 34 So.2d 321 (1948). We hold the same is true of the present article; it provides limitations on the right to expropriate additional to those required by the legislation.

Appellant next argues that the obligation to encase the pipeline in the future cannot satisfy the requirement that “compensation” be paid for the expropriation. The trial court awarded compensation for the property taken, $5,074.50, and severance damages of $10,000.00 for the “fear” caused by presence of the pipeline. Appellant contends that since the pipeline will have to be encased if a public street is ever built over the line, this reduces by that amount what a willing buyer would pay for that property. In final analysis, appellant is seeking present additional damages measured by the cost of future corrective measures.

The trial court did not find that appellant proved that the property must be developed as argued at trial. There is also some question of who would be responsible for the encasement of the pipeline if it ever became necessary. To receive an award of severance damages a diminution in market value after the taking must be proven. Greater Baton Rouge Airport District v. Hays, 339 So.2d 431 (1st Cir. 1976); writ denied, La., 341 So.2d 403 (1977). The evidence on which appellant bases her claim for the added severance damages only proves that there may be a need of some corrective measures to be taken in the future. Thus, we find the denial of the additional severance damages to be correct. However, the jurisprudence of Louisiana has recognized as a valid remedy in expropriation cases the ordering of the needed corrective measures when such claimed injury can be completely relieved. See Gravity Drainage District No. 1 v. Key, 234 La. 201, 99 So.2d 82 (1958). Thus, we find no error in the judgment limiting the servitude granted to the expropriating authority by requiring future encasement if it ever becomes necessary.

Appellant’s next arguments concerning the width of the street, the adequacy of the awards for severance damages and attorney’s fees are all factual evaluations and fall within the discretion of the trier of fact. There is evidence in the record to support the conclusions of the trial judge; thus, we are constrained not to substitute our own. Canter v. Koehring Co., La., 283 So.2d 716 (1973).

The judgment appealed from is affirmed. Appellant is cast for the costs of this appeal.

AFFIRMED.

      . Code of Ordinances, City of Baton Rouge, Louisiana: Title 8, Chapter 6, Section 603(j) is not clear if it is the owner of the land or of the pipeline who must encase the line at a future time.

      . See Dakin and Klein, Eminent Domain in Louisiana, page 84.


author: ELLIS, Judge. LANDRY, Judge,

text:
    Jesse GUITREAU et ux. v. John L. KINCHEN et al.
    No. 11646.
    Court of Appeal of Louisiana, First Circuit.
    July 12, 1978.

      Dennis R. Whalen, Baton Rouge, for Jessie Guitreau, plaintiff appellant.
    Joseph H. Simpson, Amite, for John L. Kinchen, defendant appellee.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   ELLIS, Judge.

This is a suit on three promissory notes by Jesse Guitreau and his wife, Elvenia Guitreau, against John L. Kinchen, Leonard Kinchen, Jr. and Farley Ben Kinchen, in their capacities as co-provisional administrators of the Succession of Leonard Morgan Kinchen. After trial on the merits, judgment was rendered dismissing plaintiffs’ demand, and they have appealed.

The first note is in the principal sum of $100,007.77, dated January 4, 1974, payable on demand to the order of “myself”, and is signed and endorsed in blank by Leonard Kinchen. It provides for 10% interest and 25% attorney’s fees, and is payable at First National Bank in Denham Springs, Louisiana. The note and a collateral mortgage on certain real estate were prepared by Mary Margaret Millet, a legal secretary, at the request of Mr. Kinchen. He executed the note and mortgage at Mrs. Millet’s home, and Mrs. Millet signed the mortgage on behalf of any future holders of the note. The mortgage was never notarized and the note never paraphed for identification therewith. However, the note is fully described in the mortgage as to amount, date, and how and where payable.

The circumstances surrounding the execution of the $100,007.77 note make it clear that Mr. Kinchen intended it to be a collateral mortgage note and not a direct obligation. A mortgage may be made by private act, under the provisions of Article 3305 of the Civil Code. The identity of a note with the mortgage securing it can be shown by circumstantial and parol evidence, in the absence of a paraph. See U-Finish Homes, Inc. v. Lanzl, 202 So.2d 339 (La.App. 1st Cir. 1967) and cases cited therein.

The second note is for $50,000.00, dated January 4, 1974, payable on demand to the order of “myself”, and is signed and endorsed in blank by Leonard Kinchen. It is paraphed for identification with an act of collateral chattel mortgage executed before Duncan S. Kemp, III, Notary Public, and dated January 4, 1973.

The third note is for $45,000.00, dated January 4, 1974, payable on demand to the order of “myself”, and is signed and endorsed in blank by Leonard Kinchen. It is paraphed for identification with a collateral chattel mortgage passed before Arthur W. Macy, Notary Public, on January 4, 1974.

In the case of Allied Mortgage and Development Co. v. Warner, 185 So.2d 635 (La.App. 1st Cir. 1966), we said:

“It is elementary that a collateral mortgage does not create or represent a debt itself, but rather is a useful and common device for the securing of direct obligations, normally represented by a hand note.”

Since all of the notes sued on could only be used as collateral by Mr. Kinchen, the delivery thereof to Mrs. Guitreau must be considered as a pledge thereof. Article 3158, Civil Code; Baker Bank & Trust Company v. Behrnes, 217 So.2d 461 (La.App. 1st Cir. 1968). Under Article 3136 of the Civil Code, “Every lawful obligation may be enforced by the auxiliary obligation of pledge”. Therefore, plaintiffs are entitled to recover on the notes only to the extent that Mr. Kinchen may have been indebted to them.

The record reveals that Mr. Kinchen resided in the plaintiffs’ home for the last seven or eight years of his life. During this time, Mrs. Guitreau acted as companion, cook, secretary, bookkeeper and chauffeur for Mr. Kinchen, according to her testimony. Other members of the family also performed services for him. Other than describing these services in general terms, there is no evidence as to the extent or value thereof.

Defendants put on evidence that showed payments made by Mr. Kinchen to, or for the benefit of, the Guitreaus, during the last three years of his life, in excess of $40,000.00. The evidence further shows that the Guitreaus were in financial difficulty when Mr. Kinchen came to live with them. At the time of his death, Mrs. Gui-treau had over $10,000.00 on deposit in a savings account; owned a one-half interest in a 92-acre tract of land with Mr. Kinchen, and claimed to be the owner of a half interest in his cattle.

Mrs. Guitreau testified that she had repaid Mr. Kinchen in cash for many of his expenditures, but was unable to offer any further evidence in support of that claim.

Under the foregoing circumstances, we do not believe that plaintiffs have carried the burden of proving any obligation to them on the part of Mr. Kinchen. They are therefore not entitled to realize on the pledged security.

The judgment appealed from is therefore affirmed, at plaintiffs’ cost.

AFFIRMED.

LANDRY, J., concurs for reasons assigned.

LANDRY, Judge,

concurring.

Although I agree with the result reached herein I disagree with the following statement contained in the majority opinion:

“Since all of the notes sued on could only be used as collateral by Mr. Kinchen, the delivery thereof to Mrs. Guitreau must be considered as a pledge thereof.”

In support of the foregoing premise the opinion cites La.CC Article 3158 and Baker Bank and Trust Company v. Behrnes, 217 So.2d 461 (La.App. 1st Cir. 1968). My review of these authorities indicates that they deal with the requirements of pledge, not with the possible use of a promissory note.

I deem the quoted statement inaccurate in that it assumes that a collateral mortgage note cannot be used to represent a specific debt. I find this contrary to the jurisprudence established in Thrift Funds Canal, Inc. v. Foy, 261 La. 573, 260 So.2d 628 (1972), to the effect that the nature of the creation of the security device and the intent of the parties determines whether a mortgage is one to secure a specific debt; to secure future advances; or to be pledged as collateral security. In short, I believe that a note and mortgage which may be pledged as collateral security may also be given to secure a specific debt, depending upon the intent of the parties.

In this instance the title “Collateral Mortgage Note” appearing on two of the three notes given Mrs. Guitreau is strong indication that decedent intended to pledge the notes rather than deliver them as payment of a specific debt. This, coupled with Mrs. Guitreau’s testimony that she was to hold the notes until decedent made provision for her in his will, supports the conclusion that the notes were pledged as security for the primary debt, that is, Mrs. Guitreau’s services.

I find that the record supports the conclusion that Mrs. Guitreau did not carry the burden of proof in establishing the primary debt.

Although not required to produce written evidence of the alleged debt, Mrs. Guitreau was obligated to prove its existence. New Orleans Silversmiths, Inc. v. Toups, 261 So.2d 252 (La.App. 4th Cir. 1972) writ refused, 262 La, 309, 263 So.2d 47.

I repeat that my sole disagreement with the majority opinion is its holding that the notes in question could be used only for security and could not be used to represent a specific debt. In my judgment there is no reason why such notes cannot be used to secure a specific debt if the parties involved so intended. In this instance, I find that the record supports the conclusion that decedent intended to pledge the notes.

For these reasons I concur in the result.


author: CUTRER, Judge.

text:
    W. Glenn SOILEAU v. BOARD OF SUPERVISORS, ST. MARTIN PARISH, et al.
    No. 6783.
    Court of Appeal of Louisiana, Third Circuit.
    July 26, 1978.

      Stanford B. Gauthier, Breaux Bridge, Paul J. deMahy, George W. McHugh, Jr., St. Martinville, for defendants-appellants.
    W. Glenn Soileau, Breaux Bridge, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and CUTRER, JJ.
   CUTRER, Judge.

Plaintiff, W. Glenn Soileau, instituted this suit seeking to have Paul J. deMahy, appellant, declared disqualified to run for the position of judge of the City Court of the town of Breaux Bridge. Appellant, Paul J. deMahy, filed four exceptions: a peremptory exception of vagueness; a dilatory exception of prematurity; a peremptory exception of failure to join an indispensable party; and a peremptory exception of no cause of action. These exceptions were overruled. Answer was then filed and, after trial on the merits, the trial court ordered that Paul deMahy’s name be removed as an eligible candidate for the position of city court judge for the town of Breaux Bridge and that his name not be placed on the ballot as an eligible candidate for that position. From this judgment defendant has appealed.

There are three issues to be resolved in this case:

(1) whether the trial judge erred in overruling the exceptions;
(2) whether defendant was a “. resident elector of the territorial jurisdiction . . . .” as required by LSA-R.S. 13:2488.73;
(3) whether defendant is qualified under the same statute which provides that “The judge of the city court shall be licensed to practice law in the State of Louisiana for at least five years previous to his election . . . .”

As to the trial judge’s ruling on the exceptions, we have reviewed the pleadings and rulings of the trial court. We find that he was correct in overruling each of the exceptions. The exceptions are without merit.

Concerning the second issue of residency, the evidence reflects that defendant went to Breaux Bridge on Friday, July 14, 1978, for the purpose of leasing a furnished house from Abe DelaHoussaye. A written lease was entered into at approximately 1:30 P.M. The lease was for a period of six months with an option for an additional six months for a consideration of $75.00 per month. Defendant moved his personal belongings into the home at that time. That same afternoon defendant opened a checking account at the Breaux Bridge Bank & Trust Company. He also made a deposit at the same bank on that day. At approximately 2:00 o’clock that same afternoon, defendant obtained a post office box in Breaux Bridge and paid for a year’s rental. Prior to 4:00 P.M. defendant went to Mr. Frank Durand, driver’s license officer, to renew his driver’s license. He changed the address thereon from St. Martinville to his Breaux Bridge post office box Number 213, At approximately 4:00 P.M. he appeared at the office of Mr. Patrick Olivier, Registrar of Voters of St. Martin Parish, and changed his voter registration from Ward 3, Precinct 5, to Ward 4, Precinct 10, which is in the jurisdictional area of the city court of Breaux Bridge. Shortly after 4:00 P.M. defendant appeared before Mr. James A. Theriot, Clerk of Court of St. Martin Parish, and President of the Board of Supervisors of Elections of St. Martin Parish, and filed his notice of intention to be a candidate for the office of judge of the city court of Breaux Bridge. Defendant, along with his family, spent that night at his new residence in Breaux Bridge. The following day, Saturday, July 15th, the defendant and family ate breakfast at the Breaux Bridge residence. Defendant spent Saturday night in Breaux Bridge with his son. Sunday morning, July 16th, Mr. deMahy attended church in Breaux Bridge with his son. He then went to St. Martinville so that he could care for the children while his wife attended mass. He later went to a fraternity party that evening in Lafayette, but ultimately went back to Breaux Bridge that night to sleep. The following morning, Monday, July 17th, defendant ate breakfast at the Breaux Bridge residence, went to St. Martinville to take his children to the nursery and then on to work at his law office in St. Martinville. Mr. deMahy went back to Breaux Bridge that Monday night to attend a city meeting. He slept in St. Martinville on Monday night because of an early appointment in Livingston Tuesday morning. Defendant returned to the Breaux Bridge residence on Tuesday evening to sleep. On the morning of Wednesday, July 19th, defendant ate breakfast at the Breaux Bridge residence. He returned to the Breaux Bridge residence on Wednesday and spent the night there. Thursday, July 20th, defendant checked his post office box in Breaux Bridge and then went to work in St. Martinville. Thursday evening, after eating dinner in St. Martinville with his wife and spending time with his children, while his wife attended a meeting in St. Martinville, defendant returned to the Breaux Bridge residence to sleep. Defendant took his son with him on this occasion. Friday morning, July 21st, defendant had breakfast at his Breaux Bridge residence and prepared himself for work.

The trial judge stated in his reasons for judgment:

“In the case now in hearing, it appears to be absolutely uncontroverted that as of the time of qualification there had been no actions of living; there had been no preparation or consumption of food; there had been no sleeping; there had been none of those affirmative acts of human beings by which they live, by which they conduct their day-to-day living requirements. Under such a situation — and the Court will find that the preponderance of the evidence is massive to the extent of being inescapable that as of the time of qualification, by virtue of which the defendant objectee, Paul de-Mahy, attempted to qualify as á candidate for the position sought and to which time plaintiff objector now objects, did not have a residence, was therefore not a resident elector, and was therefore not qualified to be a candidate.”

We feel the trial judge was in error. LSA-R.S. 18:101 B reads:

“For the purposes of the laws governing voter registration and voting, ‘resident’ means a citizen who resides in this state and in the parish, municipality (if any), and precinct in which he offers to register and vote, with an intention to reside there indefinitely. If a citizen resides at more than one place in the state with an intention to reside there indefinitely, he may register and vote only at one of the places at which he resides.

The jurisprudence reflects that the term “resident” is not to be confused with the term “domicile”. The word “domicile” means “the principal domestic establishment.” A person can have only one “domicile”, but may have more than one residence and, even though one of such residences may be maintained for political purposes, such fact does not prevent the residence from being bona fide.

“A person may maintain more than one residence and the fact that one is maintained for political purposes does not itself prevent the residence from being actual and bona fide. Intent to maintain a residence is an important factor, but intent alone does not establish a bona fide residence. There must be actual, physical use or occupation of quarters for living purposes before residence is established.” Williamson v. Willage of Baskin, 339 So.2d 474 (La.App. 2nd Cir. 1976).
“. . . it is plain that a Louisiana citizen may legally maintain as many residences as he wishes and his means will allow. See Stavis v. Engler, La.App., 202 So.2d 672. In this sense residence is not to be confused with domicile . . . .” Brown v. Democratic Committee, Court of Appeal, Fourth Circuit, Third District, et al., 238 So.2d 48 (La.App. 4th Cir. 1970).

Under the facts of this case we conclude that the affirmative actions of the defendant on the afternoon of July 14,1978, were sufficient to meet the requirements necessary to establish a residence for the purpose of registration under the provisions of LSA-R.S. 18:101 B. There is no minimal durational period required for the establishment of such a residence. The intent to establish a residence, coupled with physical actions denoting the acquisition of a residence is sufficient. Defendant’s actions before registration, qualification and thereafter reflect an intent to establish and maintain the residence effective beginning at approximately 1:30 P.M. on the afternoon of July 14, 1978.

The third issue is, what is meant by the terminology used in LSA-R.S. 13:2488.-73 reading, “The judge of the city court shall be licensed to practice law in the state of Louisiana for at least five years previous to his election . . . ”?

The pertinent facts concerning this issue are that Mr. deMahy was admitted to the practice of law in Louisiana on October 5, 1973. The primary election will occur on September 16, 1978. The general election will occur on November 7,1978. Therefore, the precise question to be determined is: When does the “election” occur?

The identical question was decided before this court on July 25, 1978, in the case of Jory v. Arnette, 360 So.2d 921 (La.App. 3rd Cir. 1978). That case concerned the defendant’s eligibility to be a candidate for the office of district attorney for the Thirty-first Judicial District. In that case the defendant was admitted to the practice of law in the State of Louisiana on September 24,1973; the primary election for the office of district attorney will be held on September 16, 1978; the general election will be held on November 7, 1978. Therefore, the defendant in that case would not have been practicing law in the State of Louisiana until eight days after the primary election of September 16, 1978. The court, after reviewing the election process found in the Louisiana Election Code, held as follows:

“In his petition, plaintiff questions defendant’s eligibility as a candidate for the office of district attorney. Plaintiff thus took upon himself the burden of establishing by a reasonable preponderance of the evidence that defendant does not possess the requisite qualifications as provided in Article V, § 26 of the Louisiana Constitution of 1974, i. e., that he will not have been admitted to the practice of law in the State of Louisiana for at least five years prior to ‘his election’. Meyer v. State, Dept. of Public Safety Lic. Com., etc., 312 So.2d 289 (La.1975); Mix v. Alexander, 318 So.2d 130 (La.App. 4th Cir. 1975).
“Our consideration of the stipulated facts of this case, in light of the Louisiana Election Code and the cited constitutional provision, prompts us to conclude that the plaintiff has failed to establish by a reasonable preponderance of the evidence that defendant’s election to the office of district attorney will occur prior to September 24, 1978, and that the trial judge erred in so holding.
“A review of the Louisiana Election Code indicates the possibility of several contingencies, anyone of which would prevent the September 16, 1978 primary election from deciding who is to serve as the district attorney of the Thirty-First Judicial District. The September 16,1978 primary election will not be decisive if the death of a candidate occurs and qualifications are reopened (LSA-R.S. 18:469), nor will the primary election be decisive if the election results in a tie voté (LSA-R.S. 18:511). Additionally, the results of the September 16,1978 primary would be inconclusive if an election contest suit were filed, the results of the primary election being final only after judgment in the action contesting the election becomes definitive (LSA-R.S. 18:575). Arguably, these are remote contingencies, however, be that as it may, plaintiffs burden in the instant case is to prove by a reasonable preponderance of the evidence that defendant’s election will occur prior to September 24, 1978. It is clear that plaintiff has not carried his burden of establishing that defendant will, under all circumstances, be elected prior to the fifth anniversary of his admission to the Louisiana Bar.
“We believe that this conclusion and the construction which we accord to the cited constitutional provision and the Louisiana Election Law is consistent with the well recognized principle that laws governing the conduct of elections should be liberally interpreted so as to promote rather than defeat candidacy. Rich v. Martin, 259 So.2d 113 (La.App. 1st Cir. 1975), writ of certiorari denied.”

In the present case plaintiff has likewise failed to establish by a reasonable preponderance of the evidence that defendant’s election to the office of judge of the City Court of Breaux Bridge will occur prior to October 5, 1978, the date upon which the defendant will have been practicing law in the State of Louisiana for five years.

We have decided this case on the merits. We recognize, however, that a serious question exists as to whether plaintiff proved that he was a registered voter of Ward 4, Precinct 10 of St. Martin Parish as required by LSA-R.S. 18:491. Since we have disposed of this case on the merits, however, we do not reach this issue.

For the foregoing reasons, the judgment of the district court is reversed and it is now ordered, adjudged and decreed that plaintiff’s suit be dismissed at his cost.

REVERSED AND RENDERED.

      . The statute which sets forth the qualifications for the city judge of Breaux Bridge is found in LSA-R.S. 13:2488.73 A and reads as follows:
      “A. The judge of the city court shall be licensed to practice law in the state of Louisiana for at least five years previous to his election and be a resident elector of the territorial jurisdiction of the court on the date of qualifying for election to the office. The initial judge, to be appointed by the governor, shall be a resident elector of the territorial jurisdiction of the court on the date of his appointment.”

      . LSA-R.S. 13:2488.71 provides that the territorial jurisdiction of the court “. . shall extend throughout the town of Breaux Bridge, Louisiana and throughout the whole of Ward 4, St. Martin Parish, Louisiana. . . .”

      . LSA-R.S. 18:491 reads as follows:
      “A registered voter may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office for which the plaintiff is qualified to vote.”