author: DUPLANTIER, Judge.

text:
    Sammie Lee BROWN v. NATIONAL GYPSUM COMPANY and American Motorist Insurance Company.
    No. 8735.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.

      Orlando G. Bendana, New Orleans, for plaintiff-appellant.
    Craig R. Nelson, New Orleans, for defendants-appellees.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ.
   DUPLANTIER, Judge.

During exploratory surgery, two small nodules were removed from one of plaintiff’s lungs. Both developed as a result of his long term exposure to silica and asbestos during his 11 years of employment at defendant’s plant.

The surgery was successful, and plaintiff returned to his regular employment within a few weeks. Except for this postoperative period, plaintiff missed no time from work. Medical expenses and workmen’s compensation benefits during the period of plaintiff’s absence from work were paid by his employer.

Plaintiff sued for additional workmen’s compensation benefits, contending primarily that, even though he is not disabled from performing his occupation, the occupational disease which he developed as a result of his employment left him with a serious permanent impairment of a physical function, entitling him to benefits under R.S. 23:1221(4)(p).

Plaintiff’s contention is that even though an employee is not occupationally disabled, “where the usefulness of a physical function is seriously permanently impaired” as a result of an occupational disease, the employee is entitled to recover “schedule” benefits under R.S. 23:1221(4)(p), “the same as if said employee received personal injury by accident arising out of and in the course of his employment.” (R.S. 23:1031.1)

The district court, in dismissing plaintiff’s suit without prejudice, obviously concluded that there was no proof that plaintiff at the time of trial was either occupationally disabled or had a serious permanent impairment of a physical function. The evidence supports this conclusion. Plaintiff’s recovery was complete, with virtually no impairment of physical function.

AFFIRMED.

      . R.S. 23:1221(4)(p).

      . See LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So.2d 779 (1967); Chivoletto v.

        Johns-Manville Products Corp., La., 330 So.2d 295 (1976).

      . Therefore, we do not consider whether R.S. 23:1031.1, in granting benefits to “every employee who is disabled because of the contraction of an occupational disease” (emphasis added) restricts recovery to employees who are either partially or totally disabled from performing the duties of their former employment, or whether that use of the term “disabled” includes a serious impairment of a physical function which does not prevent the claimant from working at his former job and which would entitle him to “schedule” benefits if the impairment were produced by accident rather than disease.


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. Lynden Howell CLAY v. Louis H. CLAY, Jr.
    No. 8564.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.
    Frank J. D’Amico and George H. Jones, New Orleans, for plaintiff-appellee.
    Greenberg & Dallam, Roger I. Dallam, Gretna, for defendant-appellant.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ.
   DUPLANTIER, Judge.

The issues in this second appeal in this litigation between former spouse are more difficult to state than to resolve.

Plaintiff, Mrs. Clay, initiated the proceedings by suing her “husband” for divorce. In exceptions, answer, and reconventional demand, Mr. Clay pleaded, as a bar to Louisiana divorce suit, a prior decree of divorce between the parties in Nevada. Duly certified copies of the Nevada divorce decree were attached to his pleadings. On a prior appeal, this court affirmed the trial court’s dismissal (on exceptions) of Mrs. Clay’s divorce suit, upholding Mr. Clay’s contention that the Nevada decree was entitled to full faith and credit.

Mrs. Clay thereafter filed a “rule for . executory judgment for back due alimony,” based upon the alimony provisions contained in the same Nevada divorce decree. Mr. Clay filed an answer to the rule, and later by separate “amending and supplemental petition”, Mr. Clay obtained an ex parte order appointing a notary public and appraisers to inventory the community assets. Mrs. Clay then filed a rule to revoke that ex parte order on the ground that there was included as part of the Nevada divorce decree a community property settlement agreement between the parties.

The trial court rendered separate judgments, both in favor of Mrs. Clay, one awarding her an executory judgment for past due alimony in the amount of $25,350, and the other revoking the ex parte order appointing the notary and appraisers to make the inventory.

Mr. Clay appealed from both of those judgments. We dismiss the appeal from the judgment revoking the inventory order and affirm the executory judgment for past due alimony.

The appeal from the judgment revoking the earlier ex parte order with respect to the inventory is dismissed because it is not a final judgment, cannot cause irreparable injury, and is therefore not ap-pealable (C.C.P. Arts. 2083 and 2162).

Appellant’s sole complaint with respect to the executory judgment for past due alimony based upon the Nevada decree is that appellee had not previously filed an ordinary proceeding to have the Nevada decree recognized and made the judgment of the Louisiana court, as required by C.C.P. Art. 2541.

Mr. Clay, having urged successfully the validity in Louisiana of the Nevada decree as a bar to his wife’s Louisiana divorce action, cannot now contend that she must first file an ordinary action against him to have that same Nevada decree recognized in Louisiana before she can enforce those parts of it upon which she now relies. The sole issue in an action such as required by C.C.P. Art. 2541, is whether the decree of the other state is entitled to full faith and credit, an issue already litigated at Mr. Clay’s instance and in his favor.

Moreover, there is no doubt that Mrs. Clay’s rule to make executory the past due alimony as provided for in the Nevada decree is a “proceeding ... to have the . decree recognized and made the judgment of the Louisiana court” (C.C.P. Art. 2541). While Mr. Clay is correct that it is not an “ordinary proceeding”, as required by C.C.P. Art. 2541, that issue is raised for the first time on appeal. The objection of improper use of summary procedure is waived unless timely filed in a dilatory exception in the trial court (C.C.P. Art. 926).

In the hope of avoiding further unnecessary litigation between these former spouses, we emphasize that the effect of the proceedings between them to date is that the Nevada decree in its entirety has been recognized and made the judgment of the Civil District Court for the Parish of Orleans.

The appeal from the judgment revoking the order of appointment of a notary public is dismissed; the appeal from the judgment making past due alimony executory is affirmed; all at appellant’s cost.

APPEAL DISMISSED IN PART; AFFIRMED IN PART.

      . Clay v. Clay, 322 So.2d 238 (La.App., 4 Cir. 1975), writs refused, 325 So.2d 576 (La.1976).


text:
    FOREMOST INSURANCE COMPANY v. BLUE STREAK ENTERPRISES, INC. and Continental Insurance Company.
    No. 8625.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.
    Hammett, Leake, Hammett, Hulse & Nelson, Eldon T. Harvey, III, New Orleans, for plaintiff-appellant.
    Terriberry, Carroll, Yancey & Farrell, G. Edward Merritt, New Orleans, for defendants-appellees.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ.
   DUPLANTIER, Judge.

We affirm the trial court’s decision that a boat owner (or his subrogee) who pays a monthly fee for use of a boat slip in a marina cannot recover for the loss by theft of his boat moored in the slip, in the absence of proof of negligence on the part of the marina operator.

As did the trial judge, we reject appellant’s contention that a depositary relationship existed between the marina operator and the boat owner; they were merely lessor and lessee. The boat owner paid a monthly fee for the privilege of mooring one or more boats in the space in the marina and for using electricity and water. He could remove his boat or boats as he wished and secure it or them as he wished. The boat was never delivered to the marina operator, an element essential for deposit. (Art. 2930, Civil Code).

The judgment of the district court dismissing plaintiff’s suit at its cost is therefore affirmed.

AFFIRMED.

      . See Richardson v. Port Vincent Boat Works, Inc., 284 F.Supp. 353 (E.D.La.).


text:
    Lydier J. LOPEZ v. COMMERCIAL UNION ASSURANCE COMPANIES.
    No. 8923.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 1977.
    Rehearing Denied Jan. 11, 1978.
    John M. Holahan, New Orleans, for plaintiff-appellant.
    Drury, Lozes & Curry, Robert H. Wood, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, STOULIG and DU-PLANTIER, JJ.
   DUPLANTIER, Judge.

Two issues are presented by plaintiffs appeal from a trial court judgment awarding him the minimum amount of $17.50 per week for 100 weeks for workmen’s compensation and rejecting his claim for penalties and attorney’s fees:

(1) When the undisputed medical evidence is that plaintiff has 10% permanent partial disability of the low back region as a result of a surgical removal of a ruptured lumbar intervertebral disc, should the trial judge’s award of the minimum provided by the “schedule” (LSA-R.S. 23:1221(4)(p)) for serious permanent impairment of a physical function be disturbed?
(2) Is plaintiff entitled to penalties and attorney’s fees even though the employer’s insurer prior to suit offered in full settlement of plaintiff’s claim a larger sum than that ultimately awarded?

Plaintiff made a very satisfactory recovery from the surgery, returned to his work as a welder for his same employer about seven months after his injury, and worked steadily thereafter for over a year until the date of trial. It is clear that his only claim is for physical impairment; in fact, his only contention on appeal is that the degree and nature of his disability entitles him to a greater weekly amount than the minimum awarded by the trial judge.

The pertinent portion of the workmen’s compensation statute (“. . . the court may allow such compensation as is reasonable . . . ”) leaves much discretion to the trial judge. There is little if any evidence in this case as to extent to which the 10% medical disability rating translates into actual impairment of a physical function. Thus, there is no basis for disturbing the trial court’s discretionary award.

However, we conclude that the trial court was in error in dismissing plaintiff’s claim to penalties and attorney’s fees, and we amend the judgment accordingly.

While, as previously mentioned, the extent of plaintiff’s physical function impairment may not be extreme, there was never any doubt that as a matter of fact plaintiff has a permanent 10% disability of the low back nor that as a matter of law such a disability seriously permanently impairs the usefulness of a physical function. Thus, the insurer’s failure to pay the minimum weekly benefits awarded by the trial court was arbitrary and without probable cause; penalties and attorney’s fees are therefore due under LSA-R.S. 22:658.

Subsequent to the receipt of the medical report evaluating plaintiff’s permanent disability, defendant offered to compromise plaintiff’s claim for $2,000, in addition to the weekly compensation previously paid. The proposed settlement was filed for court approval in a court other than that in which this suit was later filed. The compromise was rejected by the court. In order to avoid penalties, defendant should have at that point commenced minimum weekly compensation payments for a “schedule” disability. The tender, in full settlement of plaintiff’s potential claim, of a greater amount than the amount later judicially determined to be due cannot serve to relieve the insurer from the assessment of penalties for failure to pay a lower amount undoubtedly due, for the tender was conditioned upon plaintiff releasing a right to claim a greater sum.

The judgment of the district court is therefore amended so as to award plaintiff, in addition to the amount of the district court judgment, the sum of $105 as penalty (12% of $875, the total net amount of compensation due him), plus the sum of $600 as attorney’s fees.

AMENDED.

      . Subject to a credit of $875 for workmen’s compensation paid to plaintiff at the maximum rate of $65 per week during the period in which he was unemployed due to his injury.

      . LSA-R.S. 23:1221(4)(p).

      . Fruge v. Pacific Employers Insurance Company, 226 La. 530, 76 So.2d 719 (1954); Guillory v. Travelers Insurance Company, La., 294 So.2d 215 (1974), and cases cited therein.


author: GUIDRY, Judge. CULPEPPER, Judge,

text:
    Katie Mae DEMARS, Plaintiff-Appellee, v. NATCHITOCHES COCA-COLA BOTTLING COMPANY, INC., et al., Defendants-Appellants.
    No. 6126.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1977.
    Dissenting Opinion Dec. 19, 1977.
    Rehearings Denied Jan. 12, 1978.
    Writ Refused Feb. 17, 1978.

      Bolen, Halcomb & Erwin, by James A. Bolen, Jr., Alexandria, Gahagan & Gaha-gen, by R. E. Gahagan, Natchitoches, for defendants-appellants.
    Whitehead & McCoy by C. R. Whitehead, Jr., Natchitoches, for plaintiff-appellee.
    Before HOOD, CULPEPPER, DOMEN-GEAUX, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

In this suit plaintiff seeks to recover damages and attorney fees from Natchi-toches Coca-Cola Bottling Company, Inc., (hereafter referred to as Coca-Cola) and Morgan & Lindsey, Inc. (hereafter referred to as Morgan & Lindsey), the manufacturer and retail seller, respectively, of a bottle of “Fanta” root beer the lip or rim of which bottle plaintiff alleges was chipped resulting in her ingesting particles of glass which caused injury.

Plaintiff’s petition is styled “SALE (sic) TO RESCIND SALE AND FOR DAMAGES”. In her petition plaintiff seeks a rescission of the sale of the soft drink, a return of the purchase price, i. e., 25$, damages and attorney fees. Presumably able counsel for plaintiff-appellee employed the redhibition theory of recovery in order to derive the benefits of R.C.C. Article 2545 which provides for an award of reasonable attorney fees in matters of redhibition where the seller is found to be in bad faith.

After trial on the merits, the trial judge rendered judgment in favor of plaintiff and against both defendants, in solido, ordering a rescission of the sale and awarding special damages in the amount of $939.45, general damages in the amount of $2,000.00 and attorney’s fees in the amount of $1,000.00. Both defendants have appealed.

The record in this matter reflects that on August 9, 1976, plaintiff was shopping in the Morgan & Lindsey store in Natchitoch-es, Louisiana and while there she purchased a “Fanta” root beer drink, manufactured by Coca-Cola, from a coin operated vending machine, owned by Coca-Cola but leased to Morgan & Lindsey. After the bottled beverage was dispensed from the machine plaintiff removed the cap therefrom by means of an opener provided as a part of the vending machine. Plaintiff then proceeded to drink from the bottle and immediately felt the presence of a foreign substance in her mouth which she determined was small particles of glass. Defendant then examined the rim or lip of the bottle and observed that it was chipped. Plaintiff reported the incident to the customer service desk. The testimony of Delores Metoyer, the customer service counter employee, confirmed plaintiff’s report of the incident. Ms. Metoyer further testified that she saw plaintiff spitting or removing fine particles of glass from her mouth.

Plaintiff thereafter experienced pain in her throat which prompted her to consult her physician, Dr. Kenneth Collins. Dr. Collins found no objective signs of injury, other than a small “nick” on plaintiff’s lower gum, but because of her continued complaints of pain and the history given him, he suggested that plaintiff consult Dr. Joseph Villard, a throat specialist in Alexandria, Louisiana. Dr. Villard saw plaintiff on August 17,1976 and performed an examination which revealed in the region of the left superior tonsillar fold a small hemorrhagic punctuate lesion. Dr. Villard recommended conservative treatment, however, after another visit, considering plaintiff’s continued complaint of pain and the history, the doctor recommended a tonsillectomy. Plaintiff was admitted to St. Francis Cabrini Hospital on August 27, 1976 for removal of her tonsils. After plaintiff’s tonsils were removed they were examined however no foreign body was discovered. Plaintiff was discharged from the hospital three days following the operation after an uneventful course. Plaintiff was finally discharged by Dr. Villard on September 7, 1976 and has not since experienced any difficulty or discomfort.

Although appellants contend that the trial court erred in finding that plaintiff ingested glass particles as a result of the incident above described and/or that the injury complained of and the surgical procedure performed resulted from the ingestion of glass, we conclude, from an examination of the record, that there is a reasonable factual basis for such conclusions. Discerning no manifest error in these findings they will not be disturbed.

The trial judge in his written reasons made no finding that the bottled drink contained broken glass fragments or that the bottle containing the drink was chipped or fractured during the bottling process leaving particles around the lip or rim, rather he concluded that both defendants were negligent and thus • liable to plaintiff because they “failed to have a proper functioning and safe opener on the machine in question”. Presumably the trial judge concluded that the lip or rim of the bottle was chipped when plaintiff removed the cap by means of the opener attached to the dispenser. This finding by the trial judge is clearly contrary to his conclusion that the sale is subject to rescission. Rather, such finding supports the view that the product was not defective at the time of purchase. In a redhibitory action the buyer must establish and prove that the vice or defect existed before the sale was made to him. R.C.C. Article 2530.

Although, as aforesaid, the trial court concluded that the opener on the vending machine was defective and caused the rim or lip of the bottle to chip our examination of the record reveals no evidence supporting this finding. To the contrary Henry C. Taylor, sales manager for Coca-Cola, testified that the opener in service on August 9, 1976 was examined and found to be without defect. Plaintiff testified that she was careful when she opened the bottle of root beer; she experienced no difficulty; and, noticed nothing unusual. Plaintiff did not testify that the opener caused the rim of the bottle to chip. Although Delores Me-toyer and Bonnie Johnson, store employees at Morgan & Lindsey, testified that they had on occasion purchased soft drinks from this machine and observed that the bottle was chipped or broken on the lip or rim, neither testified that in such instances the chip or break was caused by the opener. We find manifest error in the trial court’s conclusion that the defendants were negligent in failing to have a proper functioning and safe opener on the machine since we find no evidence in the record to support such conclusion.

Having rejected the trial court’s basis for a finding of liability on the part of defendants we will render herein such judgment as we conclude is just legal and proper upon the record. LSA-C.C.P. Article 2164.

We find no merit in the contention that plaintiff is entitled to a rescission of the sale of the soft drink. Although the record establishes that the rim of the bottled drink purchased by plaintiff was chipped as a result of which she ingested particles of glass and suffered injury, the defect in the bottle was not latent but obvious and apparent. Plaintiff candidly admitted that she did not inspect the mouth of the bottle before drinking but simply put the bottle in her mouth and upon the realization that she had glass in her mouth she removed the bottle from her mouth and immediately observed that the bottle was broken. In this regard plaintiff testified as follows (Tr. pg. 87):

“Q. Did you inspect the mouth of the bottle?
A. No. Not at that time. No.
Q. What did you do next?
A. Well, I took the bottle and I drank a swallow of soda out of it and after I drank the soda, I realized I had glass in my mouth. I didn’t take but one swallow of the soda.
Q. Did you actually swallow any of the beverage that was inside of the bottle?
A. Yes, I did.
Q. And then what did you do?
A. Well after I turned the bottle up and swallowed some of it, I felt like my lip was cut and I took the bottle out of my mouth and looked at it and I saw the bottle was broken.”

It is well settled that a redhibitory action will not lie and a sale cannot be avoided where the defect in the object purchased is apparent and can be discovered upon simple inspection. R.C.C. Articles 2476, 2520 and 2521. Fabacher v. Ghisalberti, 18 La.App. 599, 139 So. 70 (4th Cir. 1932); Kelly v. Galilee Baptist Church, 106 So.2d 733 (La.App. 1st Cir. 1958); Mattes v. Heintz, 69 So.2d 924 (La.App. 4th Cir. 1954, writ denied).

According to plaintiff’s own testimony had she made the slightest inspection of the mouth of the bottle before drinking she would have discovered the defect in the bottle. This being so under settled law she is clearly not entitled to rescind the sale in question nor is she entitled to damages and attorney’s fees under R.C.C. Article 2545.

Although plaintiff’s petition seeks recovery in this case on the ground of redhi-bition, and we have rejected this theory of recovery, we determine that her petition’ states a cause of action for recovery of damages on the theory of implied warranty of wholesomeness owed by a manufacturer or processor of food products. In her petition plaintiff alleges that she purchased the product in question; it was a drink manufactured, processed and bottled by Coca-Cola and retailed by Morgan & Lindsey; the drink or the bottle contained a deleterious substance, i. e., broken glass; the product was consumed; and, an injury resulted.

We are no longer hamstrung by the old “theory of the ease” doctrine (LSA-C. C.P. Articles 854-862 and 2164). Since the petition alleges facts sufficient to state a cause of action for recovery of damages on the theory of implied warranty, we may consider it as such.

It is now well settled that the manufacturer or processor of food products, particularly those in sealed containers such as capped bottles or cans, warrants the wholesomeness of the food products. LeBlanc v. Louisiana Coca-Cola Bottling Company, 221 La. 919, 60 So.2d 873 (1952); McCauley v. Manda Brothers Provisions Co. Inc., 202 So.2d 492 (La.App. 1st Cir. 1967), affd., 252 La. 528, 211 So.2d 637 (1968); Reid v. Clearfield Cheese Company, Inc., 307 So.2d 115 (La.App. 1st Cir. 1975); Sticker v. General Foods Corp. et al, 324 So.2d 568 (La.App. 1st Cir. 1975, writ refused). As set forth in McCauley v. Manda Brothers Provisions Company, supra:

“Liability in these cases is based on the proposition that the manufacturer-seller of unwholesome food is presumed to know its condition and is liable to the purchaser thereof who is made ill because of its consumption. As stated in the McAvin case, supra. (McAvin v. Morrison Cafeteria, 85 So.2d 63 (La.App.1956): ‘This case involves the principle of law that the seller of foodstuffs is bound to warrant their wholesomeness and that every one should know of the qualities of the things he manufactures and sells and that the lack of such knowledge is imputed to him as a fault rendering him liable to the purchaser for any vices or defects of the things.’ ”

As stated by our brethren of the First Circuit in Sticker v. General Foods Corp., et a 1, supra:

“The Supreme Court, in the LeBlanc case, supra, based the liability of the manufacturer in such cases on implied warranty rather than negligence and required a plaintiff to prove that he purchased the product in an apparently undisturbed container, that it contained a foreign substance, that the product was consumed and that an injury resulted therefrom. The practical effect of the above ruling is to impose strict liability on the manufacturer in such circumstances.”

In the instant case plaintiff has established by a reasonable preponderance of the evidence that she purchased a bottled drink manufactured by Coca-Cola; the lip or rim of the bottle was chipped, presumably in the manufacturing process there being no evidence to the contrary; upon consumption of the product fragments of broken glass were ingested; and, an injury resulted. This being considered plaintiff is clearly entitled to judgment against Coca-Cola for the general and special damages sustained. She is not entitled however to the recovery of attorney’s fees. Generally attorney fees are not allowable in the absence of contract or statute authorizing same. Although there are jurisprudential exceptions to this general rule the instant action does not fall within one of these exceptions.

Although we find Coca-Cola responsible in damages to plaintiff we conclude that the trial court erred in finding Morgan & Lindsey solidarity liable. Morgan & Lindsey has not been shown to be delictually responsible. There is no evidence in the record which would even suggest fault or negligence on the part of Morgan & Lindsey.

Morgan & Lindsey cannot be held responsible to plaintiff on the theory of implied warranty as it is well established that a retailer who sells food products packaged by the manufacturer in sealed containers cannot be held liable in damages absent a showing that he knew or should have known that the product sold is unwholesome. McCauley v. Manda Brothers Provisions Company, supra, and cases therein cited. In the instant case there is no evidence that Morgan & Lindsey knew or should have known that the bottled drink purchased by plaintiff was chipped and contained broken glass.

Coca-Cola finally suggests that the award made by the trial court is excessive and in support thereof cites several cases wherein the courts of this state have granted lower awards under somewhat similar circumstances. We have carefully examined the record in light of the principles of appellate review of damages recently announced by our Supreme Court in Coco v. Winston Industries, Inc., 341 So.2d 332 and Schexnayder v. Carpenter, 346 So.2d 196 (La.1977) and find the award neither excessive nor inadequate.

For the above and foregoing reasons the judgment of the trial court in favor of plaintiff and against the defendant, Morgan & Lindsey Inc. is reversed and set aside and insofar as this defendant is concerned plaintiff’s suit is ordered dismissed with prejudice. Further, the judgment of the trial court, insofar as it decrees a rescission of sale and awards plaintiff judgment against the defendant, Natchitoches Coca-Cola Bottling Company Inc., for attorney’s fees in the amount of $1,000.00 is reversed and set aside. Finally, the judgment of the trial court insofar as it awards judgment in favor of plaintiff against Natchitoches Coca-Cola Bottling Company, Inc., for general damages of $2,000.00 and special damages of $939.45, with legal interest on such sums from date of judicial demand until paid and casts Natchitoches Coca-Cola Bottling Company Inc. for all costs in the trial court is affirmed.

The costs of this appeal are to be borne equally by plaintiff and Natchitoches Coca-Cola Bottling Company Inc.

REVERSED' IN PART, AFFIRMED IN PART, AND RENDERED.

CULPEPPER, J., dissents in part and assigns written reasons.

HOOD, J., dissents in part for the reasons assigned by CULPEPPER, J.

CULPEPPER, Judge,

dissenting in part.

I agree with the majority that plaintiff cannot recover under her alleged redhibito-ry action, since she failed to prove a vice or defect in the bottle or its contents existed before the sale, i. e., before she removed the bottle from the vending machine. LSA-C.C. Article 2530.

The trial judge also, in his reasons for judgment, did not find a defect in the bottle or its contents. He found the opener on the vending machine was defective, and that caused the rim of the bottle to chip when plaintiff removed the cap. However, the majority in this court finds there is no evidence to support the trial court’s conclusion that the opener was defective. I agree.

After finding there was no defect in the bottle or its contents, nor in the opener, the majority proceeds to find as a fact that after plaintiff opened the bottle she should have seen “had she made the slightest inspection of the mouth of the bottle before drinking”, that the rim was chipped. On this basis, the majority holds the defect was apparent, rather than hidden, and, therefore, there can be no recovery in redhibition. I agree.

After concluding there can be no recovery in redhibition, the majority proceeds to find liability by Coca Cola on the basis of breach of the implied warranty of wholesomeness of their product. I agree with the majority that this case must be decided under the rules of products liability, as established by our Supreme Court. The leading case from our Supreme Court on soft drinks is still LeBlanc v. Louisiana Coca Cola Bottling Company, 221 La. 991, 60 So.2d 873 (1952). There, the plaintiff drank part of the contents of a bottle which contained a decomposed housefly. Prior jurisprudence had required that the plaintiff prove the bottle had not been tampered with after it left the manufacturer. The court overruled this prior jurisprudence and relieved the plaintiff of the burden of proving non-tampering. The court held that all the plaintiff need prove is that he purchased the beverage in its original container, that • the container was apparently in good condition at the time he opened it, and that the beverage contained unwholesome matter from which he sustained injury. This creates a prima facie case against the manufacturer.

The rule expressed in LeBlanc and its progeny, cited in the majority opinion, makes it clear that a fundamental requisite is proof by the plaintiff of a defect in the product. In the present case, no defect in the bottle or its contents was proved. The trial judge found no defect in the bottle, and the majority opinion also finds no evidence of any defect in the bottle or its contents. In the absence of evidence of a defect, the majority applies a presumption as follows:

“In the instant case plaintiff has established by a reasonable preponderance of the evidence that she purchased a bottled drink manufactured by Coca-Cola; the lip or rim of the bottle was chipped, presumably in the manufacturing process there being no evidence to the contrary(emphasis supplied)

I cannot accept this presumption that the lip of the bottle was chipped in the manufacturing process. In the first place, as stated above, there is no proof of any chip or other defect in the bottle at the time plaintiff removed it from the vending machine. In the absence of such proof, there can be no presumption that the lip of the bottle was chipped during the manufacturing process. In the second place, the direct evidence in this case shows that the lip of the bottle was chipped when plaintiff opened it. This was the testimony by plaintiff, and was the finding of fact by the trial judge. Thus, I strongly disagree with the majority’s application of a presumption that the lip of the bottle was chipped during the manufacturing process.

My conclusion is that plaintiff has failed to prove a defect in the product, i. e., either the bottle or its contents. Therefore, she cannot recover under LeBlanc and its progeny. Furthermore, plaintiff has failed to prove a defect in the opener, so she cannot recover on this basis. She has failed to sustain her burden of proof under any theory recognized by our law.

I agree with the majority that there is no liability on the part of Morgan & Lindsey. It leased the vending machine from Coca Cola. The Coca Cola Company owned and maintained these machines. There is no proof of liability on the part of Morgan & Lindsey under either redhibition or tort.

For the reasons assigned, I dissent in part.

      . See the excellent article entitled “MANUFACTURERS’ LIABILITY FOR DEFECTIVE PRODUCTS IN LOUISIANA LAW” appearing in 50 Tulane Law Review at pages 50 et seq.

      . Although no foreign body was found to be present in the tonsils, Dr. Villard testified that it is within reasonable medical probability that if plaintiff did swallow a broken piece of glass which passed through the area of the tonsil it could have caused the hemorrhagic lesion without having actually lodged in the tonsil.


author: WATSON, Judge.

text:
    Lester Lee LaCALLE, Jr. v. ASHY ENTERPRISES et al.
    No. 6171.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Rehearings Denied Jan. 12, 1978.
    Writs Refused Feb. 24, 1978.

      Guillory, McGee & Mayeux by A. Frank McGee, Eunice, for defendants-appellants-appellees.
    Tate & Tate by Paul C. Tate, Mamou, for plaintiff-appellee-appellant.
    Before DOMENGEAUX, WATSON and JOHNSON, JJ.
   WATSON, Judge.

Plaintiff, Lester Lee LaCalle, Jr., filed suit against Ashy Enterprises, Ashy-Hutchinson Enterprises, Inc. and L. A. Cummings, defendants, claiming both workmen’s compensation benefits and damages in tort. On October 22, 1974, LaCalle was working for Ashy Enterprises, Inc. as a swamper or helper on a bulldozer. When jumping off the bulldozer he broke his left leg and was taken to Cabrini Hospital in Alexandria where Dr. Cayer (now deceased) set the fracture and placed the leg in a cast.

Dr. Cayer referred LaCalle to Dr. J. Frazer Gaar of Opelousas who saw plaintiff some two weeks post-injury and, after taking x-rays, concluded that the fracture was displaced and required surgery. Dr. Gaar operated on plaintiff’s leg and inserted a steel rod in the tibia, which was later removed surgically. Dr. Gaar treated plaintiff until his maximum recovery from the leg fracture some 13 months later.

Ashy paid weekly benefits as well as medical expenses through February 18, 1976. Plaintiff was discharged by Dr. Gaar as able to return to work with a 6% permanent disability on February 16, 1976.

Thereafter, plaintiff’s attorney referred LaCalle to Dr. William P. Cloyd, a psychiatrist, who examined plaintiff in March, 1976 and found him disabled as a result of a severe anxiety-depressive neurosis precipitated by the injury of October, 1974. Dr. Cloyd reported the disability to plaintiff’s attorney, but there is no indication that this information was transmitted to the employer until Dr. Cloyd’s deposition was taken on August 13, 1976, with counsel for the employer in attendance.

The employer referred LaCalle to Dr. G. R. Morin, a psychiatrist of Lake Charles, who examined plaintiff on one occasion and testified on direct examination that plaintiff’s neurosis was not severe enough to prevent his return to work, but apparently meant that the neurosis after treatment would not be severe enough to prevent plaintiff working. On cross-examination, Dr. Morin stated that, in his opinion, La-Calle could not return to work as of the time of Dr. Morin’s examination, but that with treatment he would be able to return to his previous employment (TR. 167-168 and 172).

The claim in tort is based on the fact that the employer, through the company treasurer, one L. A. Cummings, who was also made defendant, committed two acts which plaintiff claims were tortious. First, Cummings wrote a letter on December 5, 1974, to the then counsel for plaintiff which made reference to an alleged drinking problem on the part of plaintiff LaCalle’s deceased father. A copy of this letter was sent to LaCalle and allegedly caused him considerable anxiety. Second, Cummings instructed the rental agency, which was supplying a hospital bed, a pair of crutches, and a wheelchair to LaCalle, to remove the items from LaCalle’s home.

The defendants filed exceptions of prescription and no right and no cause of action against the tort claim for damages. The exceptions were heard in August, 1976 and were sustained.

Following trial of the compensation claim, a judgment was entered in favor of plaintiff and against Ashy Enterprises, Inc. declaring plaintiff totally and permanently disabled and ordering payment of weekly compensation benefits at the rate of $65 per week beginning October 22,1974 for a total of five hundred weeks, subject to credit for weekly compensation previously paid. Judgment was also given to plaintiff for penalties in the amount of 12% of all payments more than 60 days overdue and a $8,000 attorney’s fee.

The defendant, Ashy Enterprises, Inc., has appealed suspensively from the judgment on the workmen’s compensation claim. Plaintiff has appealed devolutively from the judgment maintaining the exceptions to his claim for damages.

Request íor Written Opinion

Both counsel filed a request for a written opinion with the trial court. The defendant’s request was filed on February 24, 1977, two days after the judgment was signed in the workmen’s compensation claim, and defendant filed its appeal the next day. Plaintiff’s request for written reasons was filed on March 10, 1977, referring to the judgment on the exceptions, which had been signed on February 24, 1977. Plaintiff’s appeal was filed four days later on March 24, 1977. No written reasons were handed down at any point by the trial court.

The only previous case in which this question has been before this court is Fontenot v. State Department of Highways, 300 So.2d 864 (La.App. 3 Cir. 1974) in which a request for a remand to require written reasons was denied. The stated basis was that a request had not been made to the trial judge in Fontenot prior to rendition of the decision. While we now doubt the correctness of Fontenot, in the instant case the parties have indicated on appeal that they are not pressing their requests for a written opinion. Therefore, we find it unnecessary to remand for the filing of written reasons for judgment.

Tort Claim

The first issue to be considered on appeal is whether the trial court correctly sustained the exceptions filed against plaintiff’s claim in tort. Plaintiff charges defendants with tortious conduct in a letter written in December, 1974 and in the picking up of certain rented equipment in the same month. Suit was not filed until March 24, 1976. Actions resulting from offenses or quasi-offenses prescribe in one year. LSA-C.C. art. 3536. While plaintiff claims that his damages did not manifest themselves until much later, we find no merit to this contention. The exception of prescription was properly maintained and it is unnecessary to consider the exception of no right and no cause of action.

Workmen’s Compensation Claim

A. Total and Permanent Disability

LaCalle claims that he is totally and permanently disabled, as a result of a neurosis. His contention is amply supported by the testimony of Drs. Cloyd and Morin, both well qualified psychiatrists. There is no error in the finding of the trial court that plaintiff is totally and permanently disabled. There is no dispute as to the rate, duration of payments, or the other elements which are relevant in a workmen’s compensation claim.

B. Penalties and Attorney’s Fees

The record does not reflect the precise basis on which the trial court concluded that the employer was arbitrary and capricious in failing to pay weekly compensation benefits. We find that the employer was entitled to discontinue the benefits after receiving the report by Dr. Gaar, La-Calle’s attending physician, stating that plaintiff could return to work.

However, on August 13, 1976, when the deposition of Dr. Cloyd was taken, the employer became aware that plaintiff had continued to be disabled. There is no proof in the file that the employer was informed or otherwise became aware of Dr. Cloyd’s opinion prior to that time. When apprised of the situation concerning the neurosis found by Dr. Cloyd, the employer was arbitrary and capricious in not resuming, and bringing up to date, payment of weekly benefits to plaintiff. Delahoussaye v. Alien Action Agency, Inc., 300 So.2d 575 (La.App. 3 Cir. 1974).

The employer’s refusal to pay weekly benefits was held correctly to be arbitrary, capricious and without probable cause, subjecting employer to payment of penalties and attorney’s fees.

“Normally, penalties are computed on the entire amount of weekly compensation awarded, not just the portion of unpaid compensation as to which the defendant was arbitrary, Williams v. Travelers Insurance Co., 157 So.2d 356 (La.App. 3rd Cir. 1963).” Delahoussaye v. Allen Action Agency, Inc., 300 So.2d 575 at 579.

However, the employer is not required to pay penalties on weekly payments which are not more than 60 days overdue and the trial judge correctly included that provision in the judgment.

There is no error in the judgment of the trial court.

Therefore, the judgment of the trial court is affirmed. All costs of appeal are assessed one-half against plaintiff and one-half against the employer, Ashy Enterprises, Inc.

AFFIRMED.

      . The correct name of the employer appears to be Ashy Enterprises, Inc. since the defendant cast in judgment for workmen’s compensation benefits is identified by that name in the judgment of the trial court.

      . We are aware that Basco v. State of La., Dept. of Corrections, 335 So.2d 457 (La.App. 1 Cir. 1976) says that Delahoussaye stands for the converse, but Delahoussaye addressed primarily the question of whether payments were due for the interim period, not the “60 day overdue” problem. Basco and Redding v. Cade, 158 So.2d 880 (La.App. 3 Cir. 1964) correctly state the law on this point.


author: HOOD, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Bryan ROBINSON, Defendant-Appellant.
    No. 6129.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.

      Privat & Regan by Thomas K. Regan, Crowley, for defendant-appellant.

      Andrew J. Vidrine, Church Point, Phillip J. Chappuis, II, Crowley, for plaintiff-appel-lee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   HOOD, Judge.

Two petitions were filed in the Crowley City Court, sitting as a juvenile court, seeking to have Bryan Robinson, a juvenile, decreed to be a neglected or delinquent child, or a child in need of supervision. In each petition it is alleged as a basis for the relief sought that the child committed a crime. Later, both petitions were amended to allege that he committed the crime of criminal mischief, a less serious offense, in each instance. At a hearing held on those petitions, Bryan pleaded guilty to the amended or reduced charges of criminal mischief.

The trial judge then rendered judgment decreeing: (1) That the custody of Bryan be removed from the mother and given to the Division of Youth Services to be placed in a proper institution; (2) that the child remain under the supervision of the Division of Youth Services until further orders of the court; (3) that the Division of Youth Services shall render written periodic reports on the progress of the juvenile; and (4) that Bryan remain in the custody of his mother until the Division of Youth Services has obtained placement for him in a proper institution or boys’ home.

The juvenile, through his court-appointed counsel, appealed from that judgment.

Several issues are presented. One of them is whether the juvenile court had jurisdiction over Bryan in the case, or had authority to render the judgment appealed from, since it did not specifically find that the juvenile was a neglected child, or a delinquent child, or a child in need of supervision, as provided in LSA-R.S. 13:1580.

The pertinent parts of LSA-R.S. 13:1580 provide:

“If the court shall find that a child is within the purview of R.S. 13:1561 through 13:1592, it may adjudge the child to be a neglected child or delinquent child as defined in La.R.S. 13:1569 or a child in need of supervision. The court in its judgment may proceed as follows:
“(1) Place the child on probation or under supervision in his own home or in the care or custody of a suitable person elsewhere, upon such conditions as the court shall determine.
“(2) Assign the custody of the child to a public or private institution or agency authorized to care for children or to place them in family homes, provided that only those juveniles adjudicated delinquents may be committed to the Louisiana Department of Corrections unless the reason for the adjudication of delinquency was the commission of a delinquent act which would have been a felony if committed by an adult, in which case a child under the age of thirteen may be committed to the Louisiana Department of Corrections. In committing a child to a private institution or agency, the court shall select one that is approved by the division of family services. Where no institution, social agency or association approved by the state department of public welfare for the care or placement of children is available to the court, the court may commit the child to some other institution, social agency or association, which, in the judgment of the court, is suitable for the care of such child.” (Emphasis added).

A “delinquent child” is defined in LSA-R.S. 13:1569 as “a child who has committed a delinquent act and is in need of rehabilitation.” A “delinquent act” is defined in the same section of the Revised Statutes as “an act designated as a crime under the statutes or ordinances of this state.”

When delinquency is alleged, the petition must set forth the facts constituting the delinquent act or acts, and if a violation of law is the basis for filing the petition, the petition must cite the statute or municipal ordinance which the child is alleged to have violated. LSA-R.S. 13:1574; Interest of Garcia, 325 So.2d 364 (La.App. 4 Cir. 1976).

Originally, in one of the above petitions the petitioner alleged that Bryan was an accessory after the fact to a burglary, in violation of LSA-R.S. 14:25, and he sought to have him decreed to be “neglected” and “a child in need of supervision.” In the other petition he alleged that the juvenile attempted to commit simple burglary, in violation of LSA-R.S. 14:27, and he sought to have him adjudged to be a “delinquent” child.

At a hearing held on December 29, 1976, the allegations of both petitions were amended to charge that in each instance Bryan committed criminal mischief, in violation of LSA-R.S. 14:59, instead of the offenses originally alleged. The offense known as “criminal mischief” is designated as a crime under the statutes of this state, although the maximum punishment authorized for committing that offense is substantially less severe than that authorized for committing either of the crimes with which Bryan was originally charged. The commission of the crime of criminal mischief nevertheless constitutes a “delinquent act” under LSA-R.S. 13:1569.

Bryan’s mother consented to the amendment of the original pleadings which reduced the charges against him. The boy thereupon, with the consent of his mother, pleaded guilty to the two charges of criminal mischief.

The trial judge then ordered that a pre-sentence investigation be made by the Division of Youth Services. After receiving a report of that investigation, another hearing was held on February 24, 1977, and at that time the judge rendered the judgment which is before us for review on this appeal.

The juvenile involved here, Bryan, was 12 years of age when the above offenses were committed and when the judgment appealed from was rendered. His mother and his court-appointed attorney were present with him at every hearing held in this matter.

The judgment appealed from does not specifically adjudge Bryan to be a neglected child, or a delinquent child, or a child in need of supervision. The preamble of the judgment, however, reads as follows:

“A juvenile hearing was held on February 24th, 1977. The purpose of said hearing was to sentence the juvenile, BRYAN ROBINSON, on two charges of criminal mischief, to which the juvenile plead guilty on December 29th, 1976.”

Counsel for Bryan contends that the trial court was “powerless to act to deprive this mother of custody of him and ... to place him in the custody of another institution or agency,” since the judgment rendered by the court “makes no specific finding as to the delinquency and neglect or the need for the supervision of the child.” The appellant’s argument, as we understand it, is that the words “neglected” or “delinquent” or “in need of supervision” are sacramental, and that the juvenile court is without jurisdiction in a case of this kind unless the court specifically decrees in the judgment rendered by it that the juvenile is a neglected child, or a delinquent child, or a child in need of supervision.

We do not agree with that argument. Our ultimate conclusion is that the juvenile court did, and does, have jurisdiction over the juvenile in this case, and that it thus had authority to render the judgment which is now before us on appeal.

The law grants to juvenile courts exclusive original jurisdiction in proceedings concerning any child, domiciled in or found within the parish, who is determined to be neglected or delinquent or in need of supervision. If the evidence does not establish that the child is neglected, delinquent or in need of supervision , the juvenile court had no jurisdiction or authority to determine the custody of the child or to render any other judgment relating to custody. LSA-R.S. 13:1570 and 1580; In Re Cruse, 203 So.2d 893 (La.App. 4 Cir. 1967); State in Interest of Purcell, 337 So.2d 637 (La.App. 3 Cir. 1976).

In State in Interest of Purcell, supra, a petition was filed in the juvenile court seeking to have four children (three boys and a girl) adjudged to be neglected. The trial judge found that the three boys were not neglected, and it “remanded” the custody of those three children to the mother. As to the fourth child, the girl, the court did not specifically find or adjudge that child to be neglected, but it decreed that she should remain in the custody of her father until further orders of the court. On appeal, we held that the juvenile court was without jurisdiction or authority to render a judgment relating to the custody of the three boys, “since the evidence in the proceeding now before us does not show abuse or neglect” of any of those three children, and we thus dismissed the proceedings in the juvenile court as to the boys. With reference to the fourth child, the girl, however, we held that the evidence was sufficient to support a finding that she was abused or neglected, that the record as a whole made it apparent that the trial judge found her to be neglected, and that the juvenile court thus had jurisdiction and authority to determine the custody of that child, even though the court did not specifically decree in its judgment that she was a neglected child. In so holding we said:

“The trial judge did not state specifically in his reasons for judgment that he found Monica Lynn to have been abused or neglected. Considering the reasons for judgment as a whole and the decree which was signed in this ease, however, it is apparent that the juvenile judge found that Monica Lynn had been abused or neglected, and on the basis of that finding he decreed that she should remain in the custody of her father.”
“Our review of the record convinces us that there is sufficient evidence to support the judgment of the juvenile judge relating to that child.”

In State v. Traylor, 216 La. 193, 43 So.2d 469 (1949), our Supreme Court affirmed the judgment of a juvenile court which awarded custody of a child to a relative, even though we gather from the opinion that the juvenile court did not specifically decree the child to be neglected. The appellants contended that the juvenile court was without jurisdiction or authority to determine the custody of the child, since the minor was not an abandoned or neglected child. The Supreme Court reviewed the evidence, and concluded that the child was neglected and that the juvenile court thus had jurisdiction to award custody.

We note that in State v. Brecheen, 256 So.2d 793 (La.App. 1 Cir. 1971), and in In re Cruse, supra, the reviewing courts used language which can be interpreted as holding that the juvenile court must formally adjudge the child to be neglected or delinquent before it can assume jurisdiction. Neither of those cases is relied on by appellant in the instant suit, but we feel that they nevertheless deserve some comment here. We distinguish both cases. In Bre-cheen, a review of the opinion indicates to us that the appeal was dismissed because there was no signed judgment of any kind in the record from which an appeal could be taken. In Cruse, all proceedings in the juvenile court Were annulled because there were no allegations in any of the pleadings that the child came under the jurisdiction of the juvenile court, and no evidence to that effect was offered by anyone.

In the instant suit, the petitioner specifically alleged that Bryan is a delinquent child. He also alleged facts sufficient to support that assertion. The evidence establishes that Bryan committed two acts of criminal mischief, which are designated as crimes in the statutes of this state. He pleaded guilty to committing both such crimes, and his mother consented to those pleas. The trial judge accepted the pleas of guilty at the hearing held on December 29, 1976, after discussing the matter with the child’s mother and his attorney. The law provides that the commission of a crime, including criminal mischief, is a delinquent act. The record contains transcripts of all three hearings which were held in this case.

Considering the record as a whole, and the statements contained in the judgment which eventually was rendered by the trial court, we believe that the trial judge found on December 29, 1976, that Bryan was a delinquent child. We think it was because of that finding that he ordered that the pre-sentence investigation be made.

We agree with appellant that the juvenile court judge must conclude that a child is neglected or delinquent, or is in need of supervision, before he renders judgment relating to the custody of that child. We do not believe, however, that it is essential that he render a formal judgment, specifically decreeing that the juvenile falls into one of those three categories, before he can render a valid custody decree. It is sufficient to give the juvenile court jurisdiction, we think, if the evidence establishes that the child is a neglected child, or a delinquent child, or a child in need of supervision, as alleged, and the record justifies a holding that the trial judge concluded, or had sufficient grounds to conclude, that the child fell into one of those classifications.

In this case, we hold that the juvenile court had jurisdiction over the child involved here, and that it had authority to render the judgment appealed from relating to the custody of that child.

Another issue presented is whether the trial court erred in placing the child in the custody of the Division of Youth Services instead of in some other type of institution or agency.

LSA-R.S. 13:1580 authorizes the court to assign the custody of a child to “a public or private institution or agency authorized to care for children or to place them in family homes.” Counsel for appellant contends that the Division of Youth Services is not authorized to care for children, and that it thus is not the type of institution or agency to which the custody of a child can be assigned.

LSA-R.S. 46:1906 provides that the Division of Youth Services shall “accept legal custody of all children placed in it by the court pursuant to the provisions of R.S. 13:1561 through R.S. 13:1699, both inclusive.”

In view of the provisions of the above statute, we conclude that the Division of Youth Services is a proper institution or agency to which the custody of a child may be assigned under LSA-R.S. 13:1580. We find no error in the judgment of the trial court, therefore, which places the custody of Bryan in that division.

Appellant contends, finally, that the judgment of the trial court was based on the hearsay report and testimony of an officer of the Division of Youth Services, and that for that reason the judgment should be reversed.

We have determined that the trial judge ordered that a pre-sentence investigation be made after he had concluded that Bryan had committed two acts of criminal mischief, and that he was a delinquent child. A report of that investigation was submitted by Edward V. Pavy, a Juvenile and Probation Officer, and that report is in the record. The trial judge considered that report at the hearing held on February 24, 1977, at which time he informed Bryan, and his mother and his counsel, of the substance of the report and the recommendation of the investigating officer. He also informed them of the name of the officer who submitted the report. The court then rendered the judgment which is now before us on appeal.

In the case of In Re Caronna, 197 La. 494, 2 So.2d 1 (1941), the Louisiana Supreme Court held that in determining who should have custody of a neglected child, the juvenile court judge may:

“ . . . take judicial cognizance of any records that may be in his court touching on the matter. If he thinks the case requires such action, he may even go as far as to institute an independent investigation of his own into the habits and character, as well as the circumstances surrounding the lives of the parents to whom he is asked to restore a neglected child, in an effort to determine whether or not such restoration is to the child’s best interest.”

Since the statements contained in the pre-sentence report were read and considered by the trial judge after Bryan had plead guilty, and after a determination had been made that he was a delinquent child, the use of those statements did not violate any of the appellant’s rights. We conclude that the trial judge did not err in considering those statements under the circumstances presented here.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Johnny ROBINSON, Defendant-Appellant.
    No. 6130.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Jerry P. Harmon, Crowley, for defendant-appellant.
    Andrew J. Vidrine, Church Point, for plaintiff-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   HOOD, Judge.

This is a companion to the case of State of Louisiana v. Robinson, 353 So.2d 442 (No. 6129 on our docket).

Two petitions were filed in the Crowley City Court seeking to have Johnny Robinson, a brother of Bryan Robinson, decreed to be a delinquent child. In each petition it is alleged that the child committed acts which are designated as crimes under statutes of this state or ordinances of the City of Crowley. Johnny was 13 years of age when those acts allegedly were committed.

After trial of the cases before the above city court, sitting as a juvenile court, the child was found guilty of committing aggravated battery as alleged in one petition. At the conclusion of that trial, Johnny pleaded guilty to charges of criminal mischief, in violation of a state statute, and of discharging an air rifle in the City of Crowley, in violation of an ordinance of that city, all as alleged in the other petition.

The trial judge thereupon rendered judgment decreeing: (1) That the custody of Johnny be taken away from his mother and given to the Division of Youth Services, to be placed in a proper institution until further orders of the court; (2) that the child remain in the custody of his mother until the Division of Youth Services is able to place him in a proper institution; and (3) that written periodic reports be rendered to the court by the Division of Youth Services. The juvenile, through his court-appointed counsel, appealed from that judgment.

No briefs have been filed in this court relating to the instant case, either in behalf of the State or in behalf of the juvenile. This case was consolidated for argument with the companion suit pending against Bryan Robinson, a brother of the juvenile involved here, however, and briefs were filed in that companion suit. We assume that the arguments made in that suit are intended to be made in the instant case.

The judgment rendered by the trial court in this case did not specifically adjudge Johnny to be a delinquent , child. We have considered the question (raised in the companion case) of whether the juvenile court did or did not have jurisdiction to assign custody of the child, since the judgment makes no specific finding that Johnny falls into one of the three classifications which are set out in LSA-R.S. 13:1580.

The preamble of the judgment rendered by the trial court recites that a juvenile court hearing was held on March 15, 1977, for the purpose of sentencing Johnny on the charges to which he had pleaded guilty on December 29, 1976, and on the charge of which he was found guilty on the same date.

Considering the record as a whole, and the statements contained in the above judgment, we conclude that the trial judge found on December 29, 1976, that Johnny was a delinquent child. The evidence clearly supports that finding.

Under those circumstances, and for the reasons assigned in the companion suit, State of Louisiana v. Bryan Robinson, supra, we hold that the Crowley City Court, sitting as a juvenile court, was vested with jurisdiction and had authority to render the judgment appealed from in the instant case.

We also have considered the questions of (1) whether the trial court erred in placing the child in the custody of the Division of Youth Services, and (2) whether it erred in considering the pre-sentence report made by a Juvenile and Probation Officer on January 17, 1977, which was after the trial court determined that Johnny was delinquent but before the judgment appealed from was rendered. For the reasons assigned in the Bryan Robinson case, supra, we find that no error was committed by the trial court in either of those instances.

Our conclusion is that the trial court, sitting as a juvenile court, had jurisdiction to render the judgment which is before us on this appeal, and that there is no error in that judgment.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Roy Lee LANDRY, Plaintiff-Appellant, v. John J. MARTIN et al., Defendants-Appellees.
    No. 6188.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.
    Rehearing Denied Jan. 12, 1978.
    Writ Refused Feb. 24, 1978.

      Plaisance & Franques by A. J. Plaisance, Lafayette, for plaintiff-appellant.
    Voorhies & Labbe by William M. Bass, Lafayette, for defendants-appellees.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   HOOD, Judge.

Roy Lee Landry claims damages for personal injuries sustained by him as the result of a motor vehicle collision. The defendants are Mr. and Mrs. John J. Martin and their insurer, Aetna Casualty and Surety Company. The policy which Aetna issued to the Martins limits the liability of the insurer to $10,000.00 for injuries to one person.

After trial on the merits, the trial court rendered judgment in favor of plaintiff Landry and against all defendants, in soli-do, for $10,000.00, and in favor of plaintiff and against Mr. and Mrs. Martin, individually and in solido, for $61,231.94. The judgment also decreed “. . . that John J. Martin and Mrs. John J. Martin are unable to respond in judgment and, accordingly, the sums awarded hereinabove against them are limited to the limits of the policy of insurance, issued by Aetna Casualty & Surety Company, to said individuals, reserving to Roy Lee Landry the right, if any he has, to proceed against Aetna Casualty & Surety Company for the excess over and above its policy limits, and/or the right, if any he has, to proceed for any underinsured motorist insurance benefits.” Plaintiff appealed.

The issues presented are (1) whether the trial court erred in considering, during the trial of the case on its merits, the alleged inability of the Martins to pay the damages sustained by plaintiff, (2) whether the Martins, in fact, are unable to pay the amount awarded to Landry, and (3) whether the award made by the trial court is inadequate.

On November 16, 1975, an automobile being driven by plaintiff was struck from the rear by a vehicle being driven by Mrs. Martin, one of the defendants. Plaintiff sustained injuries as a result of that collision. The trial judge held that Mrs. Martin was negligent and that her negligence was the sole proximate cause of the accident. That finding of negligence by the trial court is not questioned on this appeal.

Defendants Mr. and Mrs. Martin specifically pleaded, in the alternative and in the event they should be found to be liable to plaintiff, that they are unable to pay or respond to any judgment in excess of the coverage provided in their policy with Aet-na. They alleged that for that reason any award which may be made to plaintiff should not be in excess of their policy limits.

At the trial, Mr. and Mrs. Martin introduced evidence tending to show their inability to pay any judgment which might be rendered against them. They testified as to their income, living expenses, debts and assets, and they filed documents to support their statements. Plaintiff objected to their testimony, but his objections were overruled and the trial judge considered that evidence in deciding the case on its merits. The judge stated in his reasons for judgment that “These individual defendants have pled their inability to respond in judgment and the court does find from the evidence presented that they are in fact unable to respond in judgment and, accordingly, the court will award the sums previously stated but limit recovery in this instance to the amount of the policy of insurance. . . . ”

Plaintiff contends that the trial court erred in considering, during the trial of the case on its merits, evidence relating to defendants’ inability to pay damages to plaintiff. He argues that the question of whether defendants are able to pay should be considered only in separate proceedings, . . after rendition of an adequate judgment to plaintiff, when the plaintiff in such cases as in this immediate case attempts to execute on the judgment.” We find no merit to that argument.

The law is settled that a defendant in a tort action may present evidence during the trial of the case on its merits to show his inability to pay general damages, and that the trial court may consider that evidence in determining the amount of the award of such damages. Tabb v. Norred, 277 So.2d 223 (La.App. 3 Cir. 1973); Rollins v. New York Fire and Marine Underwriters, 225 So.2d 663 (La.App. 3 Cir. 1969); LeDoux v. Southern Farm Bureau Cas. Ins. Co., 339 So.2d 966 (La.App. 3 Cir. 1976).

We conclude that the trial judge did not err in admitting evidence at the trial relating to the defendants’ inability to pay, and in taking that evidence into consideration in determining the amount of the award.

Plaintiff contends next that Mr. and Mrs. Martin have failed to establish that they are unable to pay or to respond to the judgment which was rendered. He argues that the trial judge erred in failing to consider the potential income of the Martins, as well as their current wages and assets, in determining whether they are able to pay the amount of damages which were found to have been sustained by plaintiff.

The record shows that Mr. Martin is about 34 years of age, and that Mrs. Martin is about 29. They have two children. Mr. Martin is regularly employed at a gross salary of about $220.00 a week, his take-home pay being about $165.00 per week. He participates in a retirement plan, to which his employer contributes, but he does not know how much he has contributed to that plan or the value of his interest in it. He stated that he normally obtains a refund on his income taxes, and that last year his refund amounted to about $600.00. He owns no land and no stocks or bonds. Neither he nor his wife has a savings account.

Mrs. Martin, testified that their living expenses amounted to about $420.00 per month, and that they pay the additional sum of about $419.27 each month to apply on their debts, making their total expenses amount to approximately $839.27 per month. The principal debt owed by the Martins is in the amount of $23,063.94, that being the balance due on the purchase price of the trailer home in which they live. They bought that trailer in March or April, 1976, which was after the accident involved here occurred and two or three months after the instant suit was filed. Other debts on which they are making payments are $593.46 representing the balance of the purchase price of a color television, $250.00 for the purchase of a stereo component system, and $3,796.48 being the balance due for the purchase of a camper for their pick-up truck.

The trial judge, after considering the above facts, concluded that the Martins were unable to pay any amount over and above the limits of their policy with Aetna, and he thus rendered judgment which, in effect, relieved them of any liability for the damages caused by Mrs. Martin’s negligence. We have concluded that the trial court erred.

The “ability to pay” doctrine is founded on the principle that courts will not grant vain and useless relief, or render a judgment which is incapable of execution. Williams v. Garner, 268 So.2d 56 (La.App. 1 Cir. 1972). That doctrine should not be applied, however, to completely relieve a defendant from liability for damages inflicted by his own negligence, or to reduce the award of damages to a bare minimum. Smith v. Freeman, 31 So.2d 524 (La.App. 2 Cir. 1947); Lacaze v. Horton, 100 So.2d 252, 255 (La.App. 2 Cir. 1958). See also Tabb v. Norred, supra.

In Lacaze, supra, the court said:

“ . . . After consideration of all the facts bearing upon the opposed contentions of the parties litigant, we are impelled to the conclusion that the judgment in the instant case is an extreme and unwarranted application of the principle that, in fixing the quantum of damages allowed, consideration should be given to the ability of a defendant to pay. It must be borne in mind that this principle is not intended to completely relieve a defendant of liability for reparation of damages inflicted by his own negligence, nor should it bé considered as justifying the reduction of the allowance of damages to a bare minimum. Either of these alternatives, in our opinion, would be an extreme application of the principle and would result in effecting a gross injustice toward a plaintiff, under the guise of the application of a humane consideration for the plight of an impecunious defendant.”

The burden of proof rests on defendants, Mr. and Mrs. Martin, to show that they are unable to pay or to respond to the judgment. Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973); Hilburn v. Johnson, 240 So.2d 767 (La.App. 2 Cir. 1970).

The evidence in the instant suit shows that Mr. and Mrs. Martin are relatively young. Although Mr. Martin underwent surgery on November 17, 1975, the day after the above accident occurred, to correct a congenital defect in his back, the record indicates that he has recovered and we assume that he is in good health. He is regularly employed and has an interest in a retirement plan.

The living expenses of the Martin family are less than Mr. Martin’s earnings, but the total amount expended by them toward living expenses and payment on debts exceeds their income. We notice, however, that most of the debts owed by the Martins are for the purchase of items of movable property. Some of those purchases were made recently, and some of the items which were bought must be classified as luxuries. It is reasonable to assume, in the absence of evidence to the contrary, that in each such purchase the defendants acquired assets which were at least equal in value to the amount of the debt incurred for the purchase price. In any event, the evidence fails to show that the Martins are impecunious or insolvent.

The record does not contain an inventory of the assets presently owned by the Martins, and it does not purport to show the value of the equity which they own in the recently purchased items of property. It does not indicate whether Mr. or Mrs. Martin will or may acquire .additional assets later, or what their potential income might be in the future.

In determining whether a defendant is able to pay or respond to a judgment for damages rendered against him, the court may consider the “potential ability” of the defendant to pay. His potential ability to pay should not be made the primary or exclusive basis of an award in damages, but it may and should be considered in determining the amount which he should be condemned to pay.

In Theriot v. Gianelloni, 121 So.2d 275, 278 (La.App. 1 Cir. 1960), the First-Circuit Court of Appeal said:

“ . . .In this same connection defendant points with confidence to the written reasons for judgment filed herein by the learned trial judge wherein he states he was of the opinion plaintiff was entitled to recovery far in excess of the sum assigned but that recovery was limited to the extent of $8,000 because of defendant’s financial inability to answer in damages. On this important phase of the case the record confirms defendant’s contention that he is a 23 year old, third-year college student with no income and virtuaily no assets. However, the record further indicates defendant possessed of considerable potential wealth in that his father is the owner of a rather large plantation on which is located an undisclosed number of producing oil wells. We believe the record justifies the conclusion defendant’s potential inheritance and earning ability are of considerable proportions. While potential ability to pay may not be made the primary or exclusive basis of an award in damages neither may it be completely ignored and disregarded. The record convinces us that defendant’s social, economic and educational background is such that in the normal course of events he may reasonably be expected to attain at least moderate financial success which circumstances must be considered in determining his ability to recompense an injured party in damages for personal injuries inflicted.”
sfs * * # * *
We believe our learned brother below erred in completely ignoring and disregarding the financial potential of the present defendant and the award granted must be increased.” (Emphasis added).

No constitutional issue is presented here. We note with interest, however, the following comment in the article entitled “The Ability to Pay Doctrine in Louisiana,” appearing in 36 L.Law Rev. 248, 255, footnote 43:

“ . . . Louisiana courts have stated that the ability to pay doctrine prevents the courts from granting ‘vain and useless’ judgments and thus presumably preserves the integrity of the courts and promotes judicial efficiency. However, the stated objective will only be achieved if the court is able to precisely calculate at the time of trial the defendant’s potential for future wealth. An impecunious defendant might obtain future wealth by way of unsuspected inheritance, salary increase, or other means. Absent the ‘ability to pay’ obstacle, a plaintiff unable to satisfy his judgment by immediate execution could seize such future wealth at any time during the life of the judgment. Since even the most destitute defendant might obtain future wealth, arguably the presumption that a full judgment is incapable of execution does not reasonably promote either judicial integrity or efficiency, and therefore violates the fourteenth amendment. Furthermore, if the ability to pay doctrine is viewed primarily as a means to afford relief to the impecunious defendant, although application of the doctrine may be a rational means of furthering that objection, the purported state interest may conflict with federal bankruptcy law and be considered as preempted by federal law and policy.”

After considering all of the evidence in the instant suit, we have concluded that defendants, Mr. and Mrs. Martin, have failed to meet the burden of proof which rests on them of establishing that they are unable to pay anything on the judgment rendered by the trial court. The judgment can, and presumably it will, remain in effect for many years unless defendants are relieved from payment by some other means. We do not believe, however, that the evidence justifies a conclusion that the Martins are unable to pay anything on the judgment now and that they will never be able to make such a payment.

For the above reasons, we have decided that the judgment of the trial court must be amended to delete that part of it which decrees that Mr. and Mrs. Martin are unable to respond in judgment, and which limits the award to the coverage provided in the policy which Aetna issued to the Martins.

We turn now to the question of whether the award of damages made by the trial court should be increased, as urged by plaintiff.

Plaintiff Landry is about 36 years of age. The injuries he sustained consisted largely of a ruptured disc in the L-5 and S-l area. The trial judge found that plaintiff would have to have the ruptured disc surgically repaired, and that even with that surgery he would be permanently disabled from performing strenuous manual labor. He concluded, however, that after the surgery is performed, plaintiff will be able to pursue employment in the sales end of the oil industry or in other fields not requiring heavy manual labor. On the basis of that finding, the trial court awarded plaintiff the aggregate sum of $71,231.94, which included an award of $50,500.00 as general damages, $16,200.00 as loss of wages, and $3,000.00 for future medical expenses.

Defendants have not appealed, they have not answered plaintiff’s appeal, and they do not argue here that the amount of the award made to plaintiff should be reduced. Plaintiff contends that the award should be increased substantially. We have decided that the total award of $71,231.94 made by the trial court is adequate to compensate plaintiff for all of the damages he sustained, and that the award thus should not be increased.

Plaintiff conceded that he was not employed at the time the accident occurred. He worked as a salesman for Industrial Divers, Inc., for a period of eight or nine months, from January until September, 1975, but he has had no employment of any kind since the last mentioned date. He thus was unemployed when the accident occurred on November 16, 1975. Immediately prior to his employment by Industrial Divers, he worked for A-l Boat and Tool Company for about one year, and prior to that he worked for Dresser Industries for about one and one-half years. In each of those employments he served as a salesman or as a warehouse manager for his employer. Our understanding is that he had not been required to perform heavy manual labor on any of those jobs.

Landry contends, and he told the doctors who examined him, that he was a “hard-hat commercial diver” at the time the accident occurred, and he bases his claim for damages partly on the ground that he will not be able to continue his work as a diver. The evidence shows that he was not then, and he never has been, a commercial diver. He made a few shallow dives for pleasure several years before the accident, but he has never done any diving for pay or as a business. He stated that he had planned to do some commercial diving later, and that he had a barge salvage job “lined up” at the time of the accident, for which he would have received $6,000.00.

The trial judge noted in his reasons for judgment that plaintiff “was preparing to go into a new venture as a commercial diver, and that he had in fact had one contract lined up for which he would receive the sum of $6,000.00.” We gather from that comment that the award made by the trial court for loss of wages was based partly on his loss of income as a commercial diver. In our opinion the evidence fails completely to show that plaintiff had contracted to perform a diving job. Even if such a contract had been entered into, however, plaintiff conceded that he would have to look at the barge before he could determine whether a salvage job could be performed, and he didn’t even know where the sunken barge was located. He had no diving equipment, he had never attempted to perform a salvage job of any kind, and he had never done any deep diving even for pleasure, so there was no showing that he could have done the work or that the venture would have been profitable if he had undertaken to perform it. We find that his claim for loss of income from this new intended commercial diving venture is too speculative to serve as the basis for an award of damages.

In view of the fact that plaintiff was not employed when the accident occurred, that his employment had been somewhat unstable prior to that time, and that his other proposed business venture is highly speculative, we question whether the evidence supports the trial court’s award for loss of wages resulting from the accident. Defendants do not seek to have the award reduced. We feel, however, that the trial court was generous in allowing plaintiff to recover for loss of wages. Partly for that reason, and partly because the medical evidence indicates that after surgery plaintiff will be able to return to substantially the same kind of work he had been performing before the accident, we have decided that the award of damages made by the trial court should not be increased.

Our ultimate conclusion is that the judgment appealed from should be affirmed insofar as it condemns all defendants, in soli-do, to pay $10,000.00 to plaintiff, and condemns Mr. and Mrs. Martin to pay the additional sum of $61,231.94. We feel, however, that the judgment should be amended by deleting the provision which decrees that Mr. and Mrs. Martin are unable to respond in judgment, and that the award is restricted to the limits of the policy issued by Aetna.

For the reasons assigned, the judgment appealed from is amended to delete the provision which decrees “ . . . that John J. Martin and Mrs. John J. Martin are unable to respond in judgment and, accordingly, the sums awarded hereinabove against them are limited to the limits of the policy of insurance, issued by Aetna Casualty & Surety Company, to said individuals, reserving to Roy Lee Landry the right, if any he has, to proceed against Aetna Casualty & Surety Company for the excess over and above its policy limits, and/or the right, if any he has, to proceed for any underin-sured motorist insurance benefits.” In all other respects the judgment appealed from is affirmed. The costs of this appeal are assessed to defendants-appellees, Mr. and Mrs. John J. Martin.

AMENDED AND AFFIRMED.


text:
    Bob SMITH, Plaintiff-Appellee, v. CITY OF OAKDALE, Louisiana, Defendant-Appellant.
    No. 6189.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1977.

      K. Perrell Fuselier, Oakdale, for defendant-appellant.
    Ryder & Deshotels, Errol D. Deshotels, Oberlin, for plaintiff-appellee.
    Before HOOD, CULPEPPER and FOR-ET, JJ.
   HOOD, Judge.

This is a mandamus suit instituted by Bob Smith against the City of Oakdale, in which plaintiff seeks to compel defendant to appoint him as Chief of Police of that city. Judgment was rendered by the trial court in favor of plaintiff. Defendant appealed.

The issues presented are (1) whether plaintiff was properly “certified” by the Oakdale Civil Service Board as being eligible for appointment as Chief of Police of the defendant city; and (2) whether this mandamus suit is premature or is an appropriate procedure for the relief sought by plaintiff.

The City of Oakdale was chartered under the Lawrason Act, and is governed by a mayor and five aldermen. It has a population of between 7,000 and 13,000. The appointment of the Chief of Police of that city is governed by “Fire and Police Civil Service Law For Small Municipalities And For Parishes and Fire Protection Districts.” LSA-R.S. 33:2531, et seq.

A vacancy occurred in the office of Chief of Police of the above city in 1974. On June 10, 1975, a promotional examination was administered by the Fire and Police Civil Service Board for the City of Oakdale to determine the eligibility of applicants for appointment to fill that vacancy. Examinations also were administered on that date to determine the eligibility of applicants for appointment to other positions. Three persons, including plaintiff Smith, filed applications and took the examination for eligibility to be appointed as Chief of Police. Two of them failed the test, but plaintiff was successful in passing it. No other applicant has passed the examination to determine eligibility for appointment as Chief of Police since that time..

The Mayor and Board of Aldermen of the City of Oakdale were informed in some manner that plaintiff had successfully passed the civil service examination to determine his eligibility for appointment to the position he now seeks, but the defendant city nevertheless refused to appoint plaintiff as its Chief of Police.

Smith instituted this suit on September 27, 1976. He contends that he is the only person who was certified by the Civil Service Board as being eligible for appointment to fill the above vacancy, and that it is the mandatory duty of the city to appoint him as its Chief of Police.

Defendant filed an exception of prematurity alleging that plaintiff had failed to exhaust his administrative remedies prior to filing suit. That exception was referred to the merits. Defendant then answered, denying that it was required by the applicable Civil Service laws to appoint Smith as its Chief of Police.

After trial, judgment was rendered by the trial court in favor of plaintiff, ordering defendant “to immediately appoint Bob Smith Chief of Police of the City of Oak-dale, Louisiana.” Defendant appealed.

Applicable here is LSA-R.S. 33:2554, the pertinent parts of which provide:

“A. Whenever the appointing authority proposes to fill a vacancy in the classified service, except by demotion, transfer, emergency appointment, or by substitute employment not to exceed thirty days, he shall request the board to certify names of persons eligible for appointment to the vacant position. The board thereupon shall certify in writing the names of eligible persons from the appropriate employment list as provided below.
“D. Certification and appointment from the competitive list shall be limited to those conditions and classifications for which the competitive test may be given as provided by R.S. 33:2552(5). Upon the appointing authority’s request for the certification of eligible persons from which it may fill a vacancy, and if the competitive list is the appropriate list from which the names of eligible persons shall be certified, the board shall certify the names of the persons upon that list, in the order in which they appear thereon, for the class in which the vacancy is to be filled. The appointing authority shall select and appoint to the first vacancy to be filled any one of the persons so certified to it for the vacancy. If any one or more persons so certified refuses the appointment, the appointing authority then shall select and appoint any one of the remaining persons certified by the board. This procedure shall be followed until the position has been filled by appointment of one of the persons certified from the list and willing to accept the appointment, or until each person whose name appears upon the list has in this manner been certified for the vacancy.
“G. It shall be mandatory for the appointing authority to fill each vacancy, including vacancies in classifications hereafter created, within 60 days of the occurrence of the vacancy. This shall not operate to prevent the board from abolishing any unnecessary classifications.”

(Emphasis added).

The defendant city contends that it is not required, and thus it cannot be compelled by mandamus, to appoint plaintiff as its Chief of Police, because the Civil Service Board has never certified “in writing” that Smith is eligible for such an appointment.

As noted above, LSA-R.S. 33:2554(A) provides that the Civil Service Board “shall certify in writing” the names of eligible persons. LSA-R.S. 33:2554(D) provides that the appointing authority shall select and appoint to the first vacancy to be filled any one of the persons “so certified" to it for the vacancy. The use of the word “shall” in both of the cited sub-sections of LSA-R.S. 33:2554 makes it mandatory, we think, that the Civil Service Board certify in writing the names of eligible persons, and that the appointments be made only from that list of certified names.

We conclude that the Civil Service Board is required by LSA-R.S. 33:2554 to certify in writing the names of the persons it finds to be eligible for appointment, and that the appointing authority is required to select or appoint to fill the vacancy only a person who has been so certified in writing. We do not believe that the appointing authority can be compelled to appoint a specific person to fill a vacancy under that section of the Revised Statutes unless the Civil Service Board has certified in writing the name of that person as being eligible to fill the vacancy.

A factual issue is presented in the instant suit as to whether the Oakdale Civil Service Board certified in writing the name of plaintiff Smith as being eligible for appointment as Chief of Police.

Troy Foyil, the present City Clerk of Oakdale, was serving as City Clerk and as a member of the Board of Aldermen at the time the above civil service examinations were administered. He testified that he “knew about the test,” and that he was “advised” that “there was an applicant certified for Chief of Police.” That information obviously was given to him orally, because he stated that it was “not in writing” and that he was never “formally advised by the Civil Service Board.” He stated that he wrote to the Civil Service Board at least twice requesting that it send him a list of the people who had passed civil service examinations for various jobs, but that he never received any such list. He concedes that the Mayor, or the Public Service Director or the Acting Police Chief, could have received such a list without his knowledge, but that he does not know that they were ever advised by the Civil Service Board that Smith was eligible for the above appointment. We gather from the evidence that Foyil gave that information orally to the Mayor and to the other Aldermen, because he said they “talked about it” at a meeting.

Bobby Gordon, a Sergeant in the Oakdale Police Department, was Chairman of the Fire and Police Civil Service Board of that city at the time the above civil service examinations were administered. He testified that the Civil Service Board “approved the grades” which were made on the examinations, including the passing grade made by plaintiff Smith, and that “the Secretary (of the Civil Service Board) is supposed to send a copy of the grades to the City Clerk.” He assumed that the secretary had sent a copy to the City Clerk in this instance, but he stated that he does not know whether that was done. His testimony, in part, is “the secretary is supposed to have done it. Now, whether she did, I don’t know.” The City Clerk, Foyil, testified that he never received a “copy of the grades” or a written document of any kind from the Civil Service Board. Neither Gordon, nor anyone else, suggested that a “copy of the grades” or a list of the names of eligible persons had been sent to the Mayor, or to any city official other than the City Clerk, or that it was customary to do so.

No testimony, other than that of Foyil and Gordon, was presented on the issue of whether the Civil Service Board certified in writing to defendant that plaintiff was eligible for appointment as Chief of Police. The evidence shows that most of the personnel of the Civil Service Board changed after the above tests were administered, and that the person who was serving as secretary to the Board at that time no longer holds that position. Neither the former secretary nor any other employee of the Board testified at the trial. No list of eligible persons, no certificate, and no other written document of any kind tending to show that plaintiff had passed the civil service examination or that he was eligible for the appointment he seeks, was introduced in evidence, and no one testified specifically that any such writing ever existed.

Plaintiff Smith, the appellee, has made no appearance in this court, and no brief has been filed in his behalf in connection with this appeal.

The trial judge found that plaintiff had been “duly certified” by the Oakdale Civil Service Board as qualified to fill the position of Chief of Police of that city, and he held that “the City cannot arbitrarily leave vacant an office such as Chief of Police when there is a qualified and certified applicant for that office.” We are unable to determine from the trial judge’s reasons for judgment whether he made a factual finding that the Civil Service Board certified “in writing” the names of the persons who were eligible for the appointment, or whether he concluded as a matter of law that Smith had been “duly certified” because the same procedure of administering examinations and reporting the results of them was followed here as had been followed in other instances.

The evidence convinces us that the Oak-dale Civil Service Board did not “certify in writing” to the defendant city that plaintiff was eligible for appointment as Chief of Police. The Board did not send or furnish to the city, or to any official of that municipality, a list of eligible persons or a writing of any kind tending to inform defendant that Smith had successfully passed the civil service examination or that he was eligible for appointment to fill the above vacancy.

We conclude that the defendant city cannot be compelled to appoint plaintiff as its Chief of Police, since the Oakdale Civil Service Board has never certified in writing the name of plaintiff Smith as being eligible for that appointment. The trial judge erred, therefore, in ordering defendant to appoint plaintiff as Chief of Police of that city, md the judgment appealed from thus must be reversed.

In view of the above conclusion, it is unnecessary for us to consider the additional defenses urged by the city. We express no opinion, therefore, as to (a) whether a “copy of the grades” made by applicants who took the civil service examination would have constituted an adequate certification in writing of the names of eligible persons; (b) whether the city can be compelled to appoint the only person certified as being eligible to fill the vacancy, despite the city’s allegations that that person lacks fitness, efficiency, merit and suitability for the position; (c) whether the appointing authority may elect not to fill the vacancy at all; or (d) whether this mandamus suit was prematurely filed or whether it is the proper procedure for the relief sought by plaintiff.

For the reasons assigned, the judgment appealed from is reversed, and judgment is hereby rendered in favor of defendant, City of Oakdale, and against plaintiff, Bob Smith, rejecting plaintiff’s demands and dismissing this action. All costs of this suit, including those incurred in the trial court and on appeal, are assessed to plaintiff-ap-pellee.

REVERSED AND RENDERED.

FORET, J., concurs in the result.