text:
    In the Matter of the Succession of Charlie GRIFFIN.
    No. 12390.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Rehearing Denied Feb. 12, 1979.
    G. Allen Walsh, Baton Rouge, for plaintiff-appellee Lloyd Edward Griffin.
    David Dawson, Baton Rouge, for interve-nor-appellant Stanley Griffin.
    Harold Douglas, New Orleans, for defendant-appellant and testamentary executrix Daisy Campbell.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

This appeal by Daisy Campbell, testamentary executrix for the estate of Charlie Griffin, deceased (decedent), is from judgment of the trial court ordering her to file an amended final account and distribute the assets of decedent’s estate equally between Stanley Griffin and Lloyd Edward Griffin, named legatees in decedent’s will. The sole question presented is one of interpretation of testamentary language. We reverse upon finding that the trial court erroneously construed the terms of the testament when considered in its entirety.

Decedent died April 6, 1977, while domiciled in East Baton Rouge Parish. He was survived neither by ascendants nor a spouse. He was survived by one adopted child, Stanley Griffin, who has joined in this appeal.

Decedent left a statutory will executed under date of December 24, 1974, the pertinent portion of which reads as follows:

“To my son, Stanley Ross Griffin, I leave one half (V2) of all my property that I die possed (sic) of.
To Lord Edward Griffin, I leave one half (V2) of all my property that I die possed (sic) of.
The above disposition shall be done in an equal manner and is not to include that portion of my estate reserved to forced heir.”

The will was duly probated on April 7, 1977. On July 11, 1977, the executrix presented a proposed tableau of distribution and prayed for its homologation. The detailed descriptive list attached to the tableau indicates assets in the sum of $94,-109.39 and debts in the amount of $11,-527.97, leaving a net estate of $82,581.42 to be distributed between the named legatees. The tableau was duly homologated August 10, 1977. Judgment of possession was signed September 2,1977, recognizing Stanley Griffin as decedent’s sole forced heir and as such entitled to a forced portion which was incorrectly stated to be one-fourth of decedent’s estate. The executrix subsequently moved to amend the judgment of possession so as to establish the forced portion correctly at one-third. The judgment also distributed the disposable portion of the estate equally between the named legatees, Stanley Griffin and Lloyd Griffin, the latter being incorrectly referred to in the will as Lord Griffin. Thus, in effect, Stanley Griffin was to receive two-thirds of the estate, his forced portion of one-third and one-half of the remaining two-thirds, while Lloyd Griffin would receive an undivided one-third.

On October 28, 1977, counsel for Lloyd Griffin moved to reopen the succession seeking an equal division of its assets between the named legatees. In May, 1978, judgment was rendered in the trial court directing the executrix to file an amended account distributing the succession assets equally between the named legatees “without regard to the legal portion of a forced heir.” From this decree, the executrix and Stanley Griffin have appealed.

In ruling that the legatees shared the estate equally, the trial court relied heavily on the testamentary language indicating that the bequest to each legatee consisted of one-half of all the decedent’s property.

In the matter of interpretation of a last will and testament, the principal function of the courts is to ascertain and carry out the intention of the testator if such intent can be determined from the language used in the will. La.C.C. Article 1712; Carter v. Succession of Carter, 332 So.2d 439 (La.1976). As stated in Carter, above, all other rules of interpretation are only means to achieve the end of determining the testator’s intent.

Also pertinent herein is the rule that courts must seek to give meaning to all testamentary language in a will and avoid any interpretation that would render testamentary language meaningless or reduce it to surplusage. Succession of Waterman, 298 So.2d 731 (La.1974). If any ambiguity exists as to the testator’s intent with regard to a particular clause or bequest, other clauses or bequests must be considered along with the ambiguous clause or provision to reach, if possible, an interpretation which harmonizes the whole. Succession of Levy, 207 La. 1062, 22 So.2d 650 (La.1945).

It is conceded that the first two dispositive clauses of the will evidence a clear intent to distribute decedent’s estate equally between the named beneficiaries. Considering, however, the final dispositive provision that “[t]he above disposition shall be done in an equal manner and is not to include that portion of my estate reserved to forced heir” (Emphasis added), it appears equally certain that decedent intended his forced heir to receive his forced portion and, in addition, share equally in the remaining portion of the estate.

To hold otherwise, as did the trial court, is to completely ignore the language of the third dispositive provision and render it totally meaningless as surplusage. We conclude, therefore, that the language of the testament, considered in its entirety, evidences the intent of decedent to leave his forced heir two-thirds of his estate and leave the remaining one-third to Lloyd Griffin.

It is ordered, adjudged and decreed that the judgment of the trial court be and the same is hereby annulled, reversed and set aside and this matter remanded to the trial court for rendition of judgment consistent with the views herein expressed. All costs of this appeal to be paid by appellee, Lord (Lloyd) Griffin.

Reversed and remanded.


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    Michel J. HANKEL, Jr., Plaintiff-Appellant, v. HARTFORD FIRE INSURANCE COMPANY and Roger P. Blitz, M. D., Defendants-Appellees.
    No. 12016.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Writ Refused Feb. 16, 1979.

      Frans J. Labranche, Jr., and Vincent T. LoCoco, New Orleans, for plaintiff-appellant.
    Edward J. Rice, Jr., New Orleans, for defendants-appellees.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

The decision of this court in Hankel v. Hartford, No. 12,016, June 12, 1978 (an unpublished opinion) was remanded to us by the Louisiana Supreme Court on October 20, 1978, No. 63,101, 363 So.2d 1188 (La.1978) for reconsideration in light of Ardoin v. Hartford Accident & Indemnity Co., 360 So.2d 1331 (La.1978).

In Ardoin, supra, the Supreme Court held that “a medical specialist is required by La.Civil Code Articles 2315 and 2316, and La.R.S. 9:2794, to exercise the degree of care and possess the degree of knowledge or skill ordinarily exercised and possessed by physicians within his medical specialty.”

Under this new holding a medical specialist’s duty is governed by the professional standards of the medical specialty and not by the professional standard within a locality or community.

The facts in the instant case point out that Dr. Roger P. Blitz is a licensed physician in the State of Louisiana, is certified by the American Board of Orthopedic Surgeons, and has since 1970 practiced his medical specialty of orthopedic surgery. Therefore, under the Ardoin test, Dr. Blitz is required to exercise the degree of care and possess the degree of knowledge or skill ordinarily exercised and possessed by other orthopedic surgeons.

Dr. Blitz performed a laminectomy and a discectomy on the plaintiff-appellant, Mr. Michel J. Hankel, on May 20, 1975. Three orthopedic surgeons testified, Dr. Roger P. Blitz, the surgeon who performed the operation; Dr. Daniel S. Sinclair, an associate of Dr. Blitz; and Dr. E. J. Dabez-ies, the plaintiff’s current physician. All three testified that the procedure for this type of surgery requires at one point three hands. One hand would hold a nerve root retractor, one hand would hold a sucker (to remove blood), and one hand would hold an instrument for removing a disc or lamina.

Although the trial judge referred to this standard as the one prevailing in the community for this type of operation, the facts reveal that this standard is the one for the medical specialty of orthopedic surgery. Therefore, we find that this “three-handed procedure” is the standard of care, skill and procedure exercised and possessed by physicians in the medical specialty of orthopedic surgery. Additionally, we note that the testimony reveals the neurologists also perform laminectomies and discectomies and that Dr. Earl Hackett, a neurologist, also testified that this was the standard of care for this type of surgery.

The dispute revolves around Dr. Blitz’s adherence to the standard. Plaintiff contends that Dr. Blitz did not use “three hands” but only two and was thereby negligent in performing the surgery. Plaintiff has the burden of proving that the physician either lacked the requisite degree of knowledge or skill or he failed to use reasonable care and diligence, along with his best judgment in the application of that skill and that, as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, plaintiff suffered injuries that would not otherwise have been incurred.

The record concerning Dr. Blitz’s adherence to the proper standard of care revolves around the testimony of two witnesses, one witness’s testimony was available to the trial court only in deposition form.

Dr. Blitz in his deposition and at trial stated that a third hand held the nerve root retractor. Dr. Blitz testified that because of the rules of the hospital where he performed the operation, a medical doctor was required to assist him in this surgery. Dr. Jacob H. Kety was the assisting doctor. Dr. Blitz testified in his deposition and at trial that Dr. Kety held the nerve root retractor. Dr. Kety in deposition stated he was not asked to hold the nerve root retractor, and he didn’t recall Dr. Blitz asking him to hold the nerve root retractor.

Four other persons were present during the operation in question, the anesthesiologist, two circulating nurses and an operating room technician. None of the parties to this litigation deposed any of these people nor subpoenaed them for trial. These witnesses were equally available to all parties to this litigation. Plaintiff asks us to attach a presumption against Dr. Blitz that because these four people did not testify they would have testified adversely to Dr. Blitz. First, no foundation was presented by the plaintiff that any of these persons, present in the operating room during surgery, would know the manner in which the surgery was performed. Secondly, as stated before, these witnesses were equally available to all parties to this litigation. We, therefore, do not attach any presumption to Dr. Blitz relating to the failure of these people to testify.

Additionally, we also feel bound by the recent decision of the Louisiana Supreme Court in Cadiere v. West Gibson Products Company, Inc. et al., 364 So.2d 998, 1978, in which it was held:

“The reviewing court must give great weight to the factual conclusions arrived at by the trier of fact, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977); Canter v. Koehring Co., 283 So.2d 716 (La.1973). ‘The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.’ Canter v. Koehring Co., supra at 724.”

The trial court found that the evidence supported the conclusion that Dr. Blitz performed this operation in a manner in keeping with the standard of care, skill, and procedure generally followed by orthopedic surgeons. Although the trial court used the application of a “locality rule” to determine the standard of care, it is the same as the standard for an orthopedic surgeon and comports with the recent Supreme Court decision in Ardoin, supra. Additionally, although plaintiff contends that the trial court did not consider Dr. Dabezies’ testimony as to the standard of care, we find Dr. Dabezies’ testimony confirms the testimony of the other orthopedic surgeons as to the standard of care to be exercised by that medical specialty in performing similar operations.

Justice Dixon concurring in the remand stated: “[T]he Court of Appeal might wish to dispose of the contended issue, if serious, that the injury was caused in part by the failure to extend the surgical procedures to another interspace.” The hospital records show that a laminectomy (removal of lamina) was to be done at the fourth and fifth lumbar of the spine and at the fifth lumbar and first sacral vertebra [we will refer to these sections of the spine as L4-L5 and L5-S1]. The hospital records also showed that a discectomy (removal of a disc) was to be done at the L5-S1 level. Plaintiff argued that Dr. Blitz never got to the disc at the L5-S1 level, but in fact removed a disc at the L4-L5 level. Plaintiff’s argument, as we understand it, was that Dr. Blitz was working at the L4-L5 level, when bleeding became a problem; that Dr. Blitz finished the surgery and closed the wound without ever going to the L5-S1 level.

We believe the following facts pertinent to this issue: The myelogram showed a positive finding of herniated disc substance at the L5-S1 position. Dr. Sinclair in his deposition stated that in his preoperative examination of Mr. Hankel, he found tenderness at the L5-S1 level, but not at the L4-L5 level. The hospital records reveal that Dr. Blitz had anticipated removing a disc at the L5-S1 level, but during surgery, he did not remove a disc at this level but rather at L4-L5. Dr. Blitz testified that since the myelogram had indicated a probable protrusion at the L5-S1 area, that is where he anticipated removing a disc, and where he made his first investigation. However, he testified he was not impressed with the findings in that area, and that there was no pathology present, and moved up one level on the spine to L4-L5, which is the proper procedure. He stated he had retracted the nerve root at L5-S1 and then at L4-L5, and at L4-L5 he found bulging disc material which he removed. Dr. Earl Hackett, a neurologist and appellant’s expert witness, testified that there was nerve root damage at both L4-L5 and L5-S1. Dr. Dabezies, an orthopedic surgeon and appellant’s current treating physician, testified that an excision was made of the L4-L5 disc; that he saw no definite evidence of any bone removed at L5-S1 and no definite evidence of a lamina defect at L5-S1; that it was hard to determine by X-ray whether or not the L5-S1 level had been entered.

We find from the testimony that Dr. Blitz did enter and examine the L5-S1 and L4-L5 interspaces. We have read the hospital records relating to the surgical procedure and believe it reflects what surgery Dr. Blitz intended to perform and what surgery he in fact performed. We find that the discrepancy between the two to be clarified by Dr. Blitz’s explanation. We find this to be an exercise of the proper degree of care, skill, and knowledge to be exercised by an orthopedic surgeon.

We do not view the Supreme Court’s writ as mandating that we change the views expressed in our opinion of June 12,1978 on the other issues presented.

For these reasons, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Frank DOMINO, Plaintiff and Appellant, v. Charles STRIPLEN (Amended 10-3-75) Larry Joseph Doiron, Charles Russell Brownell, Louis A. “Buck” Russell, Joe Williams, Steven Mire, Sidney Solar, Jr., A. J. “Peewee” Duplantis, Theophile Carter and Shopper’s Weekly, Inc. d/b/a St. Mary Journal (Paul Vella & Harry Gautier dismissed 3-10-78), Defendant and Appellees.
    No. 12286.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Rehearing Denied Feb. 12, 1979.
    J. Minos Simon, Lafayette, Allen A. McElroy, Jr., McElroy & Ramsey, Berwick, for plaintiff and appellant.
    Edward M. Leonard, Jr., Leonard & Hayes, Morgan City, for Paul Dugas, Mrs. D. Ross, Mrs. J. Watson and Dickie Mire, Charles R. Brownell, Steven Mire, Paul Vel-la, Louis A. Russell, Joe Williams, Harry Gautier and Shoppers Weekly, Inc.
    John G. Torian, II, Lafayette, for Larry Doiron and Theophile Carter.
    Cary W. Vercher, Morgan City, for A. J. “Peewee” Duplantis.
    Jacob Landry, New Iberia, for Continental Casualty Co.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

This is a defamation suit. Plaintiff, Frank Domino, appeals two adverse judgments of the trial court which 1) dismissed his suit against two defendants, Paul Vella and Harry Gautier, on a motion for summary judgment and 2) dismissed the suit against defendant, Charles Russell Brow-nell, on a motion for summary judgment.

The present action arises out of the 1974 election for mayor of Morgan City in which Brownell defeated Domino. On October 16, 1974, during the campaign, a political ad purchased by a Charles Striplen appeared in the St, Mary Journal, a publication operated by Shoppers Weekly, Inc., in which Vella and Gautier are the officers and sole shareholders. The substance of the ad was that Domino had rented the city auditorium during a recent hurricane to store cars from his automobile dealership and had thereby prevented evacuees from using the auditorium as shelter.

Domino filed this suit against Striplen, contending that the ad was false and that it defamed him by portraying him as a greedy merchant without compassion for the misfortune of others. He obtained numerous depositions (which are contained in the record) and subsequently amended his petition to name various other defendants, including Vella, Gautier and Brownell. The amended petition alleges that the defendants were engaged in a conspiracy to defame Domino and that the ad was published under the fictitious name of Striplen as an act of this conspiracy.

Vella and Gautier filed a motion for summary judgment contending that damages, (if any), resulting from the ad are debts of Shoppers Weekly, Inc., the corporate defendant, and that they are immune from personal liability inasmuch as their only contact with the ad was in their capacity as corporate officers. The trial court agreed, granted summary judgment and dismissed the suit as to these defendants.

Brownell also filed a motion for summary judgment and attached supporting affidavits. He contends that he was not a part of a conspiracy to defame Domino, that he neither defamed Domino nor encouraged other defendants to do so, and that he had no knowledge of and did not consent to the ad prior to. its publication. The trial court found that there was no evidence to establish that Brownell was a part of a conspiracy and granted the summary judgment.

ON MOTION TO DISMISS THE APPEAL

Defendant, Brownell, filed a motion to dismiss plaintiff's appeal with respect to the judgment of the trial court which granted the motion for summary judgment in favor of Brownell. He contends that the oral order granting the appeal, as reflected in a minute entry filed in the record, is not sufficient to sustain an appeal and that a written, signed order of appeal is required.

This contention is incorrect. LSA-C.O.P. art. 2121 provides:

“An appeal is taken by obtaining an order therefor, within the delay allowed, from the court which rendered the judgment. “An order of appeal may be granted on oral motion in open court, on written motion, or on petition. This order shall show the return day of the appeal in the appellate court and shall provide the amount of security to be furnished, when the law requires the determination thereof by the court.
“When the order is granted, the clerk of court shall mail a notice of appeal to counsel of record of all other parties, to the respective appellate court, and to other parties not represented by counsel. The failure of the clerk to mail the notice does not affect the validity of the appeal.” (emphasis supplied)

Furthermore, an order of appeal is an interlocutory decree. LSA-C.C.P. art. 1841. There is no requirement that an interlocutory judgment be in writing or that it be signed by the trial court, rather it is sufficient for it to be entered in the minutes. Prejean v. Ortego, 262 So.2d 402 (La.App. 3rd Cir. 1972); Simon v. Lumbermens Mutual Casualty Company, 138 So.2d 465 (La.App. 3rd Cir. 1962).

Therefore the motion to dismiss is denied.

ON THE MERITS

Domino alleges that the trial court erred in maintaining the motions for summary judgment. He argues that the testimony in the depositions establishes that the defendants were each engaged in the alleged conspiracy and that they are liable for damages.

Summary judgment is not a substitute for trial on the merits and may be resorted to only when there is no genuine issue of material fact to be resolved. The mover bears the burden of showing that there is no material factual issue. All doubts are to be resolved against the granting of the summary judgment and in favor of trial on the merits. Roy & Roy v. Riddle, 187 So.2d 492 (La.App. 3rd Cir. 1966) writ refused, 249 La. 724, 190 So.2d 236 (1966).

In this case the threshold question involves a determination of whether or not these defendants in fact participated in the allegedly defamatory act or in the alleged conspiracy.

Domino’s assertion that Brownell is liable for defamation is based on the allegation that Brownell was a member of a conspiracy and that the ad was published in furtherance of the conspiracy. Brownell denies these allegations.

We have carefully examined the pleadings, depositions and affidavits in this matter and are unable to find any evidence or to draw any reasonable inference from the evidence to support Domino’s allegation that Brownell was a part of a conspiracy which published the political ad in question. There is nothing in the record to contradict Brownell’s affidavit which states that he did not participate in any way in the publication of the ad. We can only conclude, as did the trial judge, that no genuine material issue of fact is presented by the record. Absent a nexus between Brownell and the ad, summary judgment was correctly granted. LSA-C.C.P. art. 966.

With respect to Vella and Gautier, the trial court found that there was no evidence to show that these two defendants were part of a conspiracy or that they participated in the alleged defamation other than by publishing the ad in their newspaper for a price in the regular course of business. We agree. However, their actions in publishing the newspaper are constitutionally protected under the First Amendment (freedom of the press).

The Supreme Court in Mashburn v. Collin, 355 So.2d 879 (La.1977), stated at pages 890-891: “In cases affecting the exercise of First Amendment liberties, proper summary judgment procedure is essential. . Summary adjudication may be thought of as a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeri-torious actions which threaten the free exercise of rights of speech and press.”

In Kidder v. Anderson, 354 So.2d 1306 (La.1978), the Supreme Court, quoting Judge Lottinger’s dissent in the First Circuit Court of Appeal decision (345 So.2d 922, 948), stated:

“* * * Where in the ordinary type of case he [plaintiff] could be successful in defeating the motion by only putting forth a minimum of evidence, here he confronts the guarantees of the First and Fourteenth Amendments, and thus stands the risk of the motion being successful if he cannot at this stage of the proceedings show that he can produce sufficient evidence on the trial that will prove with ‘convincing clarity’ the defendant’s malice. Stated another way ... he must come forth with strong evidence, convincingly clear evidence, that the defendant either knew the statements published were false or that he had reckless disregard of whether they were false or not. Otherwise, if plaintiff is allowed to escape summary judgment by simply a minimum showing, he has thus effectively invoked the ‘chilling effect’ of trial doctrine.”

Consequently, where a defendant has constitutionally protected First Amendment rights, a plaintiff carries a more difficult burden in defeating a motion for summary judgment.

Domino has not come forward with the required clear and convincing evidence that Vella and Gautier acted with malice (i. e. that they knew the statements in the ad were false or that they had a reckless disregard of whether the statements were false or not) to defeat the motion for summary judgment.

Accordingly, summary judgment was correctly granted in favor of these defendants. Kidder v. Anderson, supra; LSA-C.C.P. art. 966.

For the above reasons, the judgments appealed are affirmed at plaintiff’s cost.

AFFIRMED.

      . We need not discuss Brownell’s constitutionally protected rights in view of the lack of proof that he had anything to do with the alleged defamation.


author: SARTAIN, Judge.

text:
    Aldrich DUPREE, Plaintiff-Appellant, v. Carroll J. LONG, Allstate Insurance Company and Zurich Insurance Company, Defendants-Appellees.
    No. 12321.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Sam J. D’Amico of D’Amico & Curet, Baton Rouge, for plaintiff-appellant Aid-rich Dupree.
    Daniel R. Atkinson of Dale, Owen, Richard, Taylor & Mathews, Baton Rouge, for defendant-appellee Allstate Ins. Co., and Ezekiel Lockman, III.
    James E. Moore and Ray C. Dawson of Franklin, Moore & Walsh, Baton Rouge, for defendant-appellee Zurich Ins. Co.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

Petitioner, Aldrich Dupree, filed suit to recover damages for injuries received in an automobile collision on June 18, 1975.

Dupree was a guest passenger in a truck driven by Ezekiel Lockman, III when it was hit by a car driven by Carroll J. Long, an uninsured motorist. It is not presently disputed that the negligence of Long was the sole and proximate cause of the accident.

The case was tried before a jury, which fixed Dupree’s damages at $2500.00. The trial judge entered judgment for petitioner in conformity with the verdict and declined to grant petitioner’s motion for a new trial.

Petitioner appeals on the issue of quantum. The defendants-appellees involved in this appeal are Long, Allstate Insurance Company, the primary uninsured motorist insurer with coverage of $5000.00, and Zurich Insurance Company, the excess uninsured motorist insurer.

Petitioner, Dupree, was examined at the scene of the accident by Dr. Thomas Beam-on, a general practitioner, who, along with his partner, Dr. James O’Neal, continued to treat Dupree for the injuries he sustained. On Dr. Beamon’s advice, Dupree was sent to a Baton Rouge hospital for overnight observation. He was released the next day when multiple x-rays revealed no injuries. His hospital records show that he had a mild cerebral concussion with a large contusion of the left occipital area and sustained bruises in various areas.

Dr. Beamon diagnosed the injury to the instep of Dupree’s left foot as a contusion with a hematoma formation. On July 15, 1975, because Dupree was still complaining of pain in his left foot, he was referred to an orthopedic specialist. On his second visit to the specialist on August 19, Dupree was discharged from his care after being found completely asymptomatic, without complaint and without residual disability. Du-pree, however, testified that the pain in his foot often reoccurred and has continued to bother him until the day of trial.

Additionally, Dupree testified that at various times since the accident he has suffered from pain in his hip, chest, back, elbow and, on extreme movements, in his back and shoulder. He stated that at the time of trial he still frequently had pain in his foot, arm and neck. Dr. Beamon’s testimony confirmed that Dupree had come to his clinic with complaints of pain in these areas; but he admitted that he and Dr. O’Neal had found few objective symptoms of injuries other than the hematoma on the foot and the spasms in the neck and thigh, which were first detected on August 7, 1975, approximately one and a half months after the accident. Dupree made ten visits to Dr. Beamon’s clinic between June 20, and September 25, 1975. Thereafter until February 14, 1978, the day of trial, he made only four visits.

Dupree presented evidence of special damages in the amount of $488.70 for medical expenses and $2,028.60 for lost wages. He now asserts that the jury abused its discretion by awarding only these special damages and failing to include a sum for pain and suffering.

In contrast, defendants argue that the verdict did include an amount for general damages of approximately $1000.00, which they maintain is adequate compensation. They urge that there existed a reasonable basis for the jury to reject a large part of the claim for lost wages and general damages.

Dupree testified that due to injuries received in the June 18th accident he did not return to work until July 17, 1975. His employer’s records confirm these absences. The lost wages for this period amount to $1,164.40. In regard to this claim, defendants attacked the credibility of Dupree on this point by urging the jury to note that Dupree went back to work one day after he had exhausted his full disability pay and was to begin receiving half pay.

An additional amount was claimed for lost wages for other accident-related absences after July 17, 1975. On this point, Dupree testified that his injuries had caused him to miss work, but he could not specify the number of absences nor precisely when they occurred. His employer’s records show some twenty-five absences for personal illness from August 16, 1975, to September 8, 1977. Dupree’s counsel suggested in argument to the jury that it use half that number and award $864.20 in lost wages for this period on the inference that at least half of these lost work hours were due to the accident.

It is defendant’s position that the inexactitude of the evidence on lost wages coupled with the largely subjective nature of most of Dupree’s physical complaints gave the jury a reasonable basis for awarding less than the requested amount for lost wages and for assessing general damages at the relatively low figure of $1000.00.

An appellate court must affirm a quantum award of a trial court unless the record clearly reveals that the trier of fact abused its discretion in making the award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977); LeJeune v. Flash Truck Line, Inc., 353 So.2d 296 (La.App. 1st Cir. 1977). The issue is not whether this court finds a different award more appropriate, but whether the award can be reasonably supported by the evidence before the jury and justifiable inferences from that evidence. Bitoun v. Landry, 302 So.2d 278 (La.1974).

To entirely omit compensation for general damages in this case would be an abuse of discretion. However, we find persuasive defendants’ explanation of the verdict and conclude that it cannot be said with any certainty that the jury excluded general damages from its award.

As is shown above, there is evidence in the record which together with reasonable inferences therefrom puts a verdict of $2500.00 for both general and special damages within the range of discretion. There being relatively few objective symptoms of Dupree’s alleged injuries, the jury’s assessment of his credibility would of necessity be a significant factor in determining the quantum of general damages and in deciding the number of work absences caused by the accident. The award of damages reflects the jury’s evaluation of the plaintiff’s credibility.

Finding no abuse of discretion, we affirm.

AFFIRMED.


text:
    Joseph LYTELL, Plaintiff-Appellant, v. STRICKLAND TRANSPORTATION COMPANY, INC., Defendant-Appellee.
    No. 12341.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Writ Granted Feb. 9, 1979.

      Bernard S. Smith, Covington, for plaintiff-appellant.
    James L. Donovan, New Orleans, for defendant-appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

The sole issue presented on this appeal is one of law, involving the interpretation of Section 1333 of the Workmen’s Compénsation Act (La.R.S. 23:1333).

Plaintiff-appellant Joseph Lytell was injured in a work-related accident on January 6, 1975. He brought suit for workmen’s compensation benefits in October, 1975, against his employer, Strickland Transportation Co., Inc. (Strickland). Judgment for plaintiff was signed on March 17, 1977, granting him compensation based upon a finding of total and permanent disability. The award included medical and transportation expenses, compensation benefits covering the period prior to judgment, and compensation to be paid in $65.00 per week installments “for a total of 396 weeks or until a further determination is made by this Honorable Court.” No appeal from this judgment was taken.

Despite repeated written and oral requests by plaintiff’s counsel, Strickland made no payments under the judgment. On August 16, 1977, plaintiff asked the court to make the entire award due and exigible. Prior to the initial hearing on this motion, Strickland tendered a sum covering all amounts then due, which tender was rejected. The lower court refused to accelerate the future compensation installments and plaintiff appeals.

Plaintiff’s claim for acceleration is based upon La.R.S. 23:1333, which reads as follows:

§ 1333. Employer’s insolvency or failure to pay after judgment; acceleration of payments
If the employer against whom a judgment awarding compensation has been rendered becomes insolvent or fails to pay six successive installments as they become due, the installments not yet payable under the judgment shall immediately become due and exigible and the judgment shall become executory for the whole amount; but if the employee or his dependent is adequately protected by insurance and receives payments thereunder this right shall not accrue.

Strickland does not deny that it failed to make six successive payments. Rather it depends on the ground that the above-quoted statute is inapplicable to the award made in this case.

Strickland correctly points out that R.S. 23:1331 makes compensation judgments based upon disability, as opposed to those recompensing specific injuries, subject to future modification upon proof of a change in the incapacity of the injured employee. The compensation award secured by plaintiff in the instant case is without question subject to reduction upon proof of termination or decrease of plaintiff’s disability. The possibility of such a modification was expressly recognized in the judgment when the judge a quo ordered benefits to be paid for the statutorily prescribed maximum period “or until a further determination” by the court.

It is Strickland’s position that Section 1333 was not intended to apply to judgments, like plaintiff’s, which are subject to future reduction, because to allow acceleration in that situation would permit recovery of more than the employee might be entitled to were no acceleration had. We agree and, accordingly, affirm.

The Louisiana Supreme Court faced this very issue in Dixon v. King, 178 La. 1, 150 So. 385 (1933). It was held therein that Section 1333 could not be used to accelerate installments payable only during the period of disability.

“The whole amount of a judgment for compensation at $12.51 per week during the period of disability is not 150 times $12.51, merely because the judgment contains a maximum limit of 150 weekly payments. In other words, the statutory limitation of 150 weeks does not create the presumption that the whole amount of a judgment for compensation to be paid in weekly installments during the period of disability will be 150 times the amount of one weekly installment.” Dixon v. King, above at 386.

Plaintiff attempts to distinguish Dixon on the point that in Dixon, unlike in the instant case, the defendant-employer alleged and proved that the employee’s disability had ceased. We believe this difference to be without significance. The basis for the Dixon decision was that the benefits were terminable when and if the plaintiff’s incapacity ended, not that this possibility had in fact materialized.

We are supported in our interpretation of Dixon and Section 1333 by the cases of Broussard v. Dumas Chevrolet Co., 135 So.2d 614 (La.App. 4th Cir. 1961), and Marcantel v. Manuel, 134 So.2d 615 (La.App. 3d Cir. 1961). Also see Malone, Louisiana Workmen’s Compensation Law and Practice, § 388 (1951).

For the reasons assigned, the judgment appealed from is affirmed at plaintiff’s cost.

AFFIRMED.

      . § 1331. Modification by agreement of parties, approval by court; judicial review.
      A judgment of compensation may be modified by subsequent agreement between the parties, with the approval of a judge of the court which rendered the same.
      At any time six months after the rendition of a judgment of compensation, a judge of the trial court that rendered the judgment shall review the same upon the application of either party for a modification thereof, on the grounds that the incapacity of the employee has been subsequently diminished or increased, or that the judgment was obtained through error, fraud, or misrepresentation. In such cases the provisions of R.S. 23:1121 through R.S. 23:1124 with reference to medical examinations shall apply.


text:
    QUALITY TRANSPORT, INC. v. YOUNGER BROTHERS, INC., et al. Steven BROWN v. YOUNGER BROTHERS, INC., et al. TEXAS GENERAL INDEMNITY COMPANY v. YOUNGER BROTHERS, INC., et al.
    Nos. 12343 to 12345.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Rehearings Denied Feb. 12, 1979.

      William C. Kaufman, III, Baton Rouge, of counsel for plaintiff-appellant Texas General Indemnity Co.
    Calvin E. Hardin, Jr., Emile C. Rolfs, III, Baton Rouge, Perrin C. Butler, and John E. Peltier, Jr., New Orleans, of counsel for defendants-appellees Younger Brothers, Inc., et al.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

These suits resulted from a “near miss” accident between two large tractor-trailer vehicles at the intersection of Airline Highway and Highland Road approximately five miles south of Baton Rouge. Quality Transport, Inc. sued defendants, Younger Brothers, Inc., M & G Fleet Service, Inc., James H. Honeysuckle and Transport Insurance Company (the liability insurer), for damage to its tractor-trailer. Steven Brown filed suit against these same defendants for personal injuries sustained in the accident. Additionally Texas General Indemnity Company, Quality’s compensation insurer, sued defendants for compensation paid to Brown. The cases were consolidated for a jury trial, which resulted in a general verdict in favor of defendants. Plaintiffs appeal.

The facts indicate that the accident occurred on January 6,1976, at approximately 2:15 p. m. Brown was driving the plaintiff truck on Airline Highway from New Orleans and was going toward Baton Rouge. Honeysuckle was driving the defendant tractor-trailer on Highland and was crossing Airline in a westerly direction. Honeysuckle traversed the two northbound lanes of Airline, and slowed or stopped in the median area to let southbound traffic pass. Brown, traveling northbound, applied his brakes, swerved to the right and lost control of his rig. The two trucks did not collide, rather the plaintiff truck left the paved highway and turned over on its left side in a ditch just northeast of the intersection.

The jury verdict stated, “Judgment in favor of defendants dismissing the plaintiff’s suit.”

Once again this intermediate court is faced with the contention that the judgment below should be reversed as manifestly erroneous.

Our review of this record suggests negligence clearly on the part of the defendant driver. Therefore, in order to make sense of the jury’s verdict, we have to read into it the finding that the plaintiff was also negligent.

On appeal, a case is reviewed, not retried. Mulcahy v. State, Department of Corrections, 334 So.2d 509 (La.App. 1st Cir. 1976). Were we deciding this suit, we would have difficulty in finding contributory negligence. However, Canter v. Koehring Company, 283 So.2d 716 (La.1973) and the cases thereunder, command that the jury’s verdict should not be disturbed unless there is no reasonable evidentiary basis for the jury’s conclusions.

Honeysuckle testified that he stopped before entering the intersection; that he looked south toward New Orleans; that his view was unobstructed for approximately a quarter of a mile; and that he did not see any northbound vehicles on U.S. 61. On the other hand, Brown testified that he was only 40-50 yards from the intersection when Honeysuckle pulled out suddenly. Brown’s estimate of such a short distance is inconsistent with the physical evidence of skid marks of approximately 235 feet and with the testimony of the other witnesses.

The jury could reasonably have refused to believe Brown’s testimony. Therefore, there is a factual basis in the record to support the jury’s verdict.

Plaintiff, Brown, also contends that the trial court erred 1) in permitting motion pictures admitted into evidence to be repeated in the presence of the jury, and 2) in allowing counsel for defendants to make prejudicial statements to the jury in closing argument.

The record reflects that because the lights in the courtroom could not be dimmed, the motion pictures were shown in a nearby kitchen. There was no objection to this or to the absence of the trial judge from the room during the showing of the films. Upon returning to the courtroom counsel for Brown objected to the manner in which the films were shown. The objection was overruled.

There is nothing in the record, aside from counsel’s objection, to indicate exactly what occurred during the showing of the film. This lack of evidence makes it impossible to say that the trial court’s actions in overruling counsel’s objection was error.

Brown also attacks defense counsel’s closing argument.

We note that no objection was made to the closing argument in the trial court. Counsel’s failure to object to the statements that he alleges were prejudicial constitutes a waiver of his right to complain of them on appeal. Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976).

For the above reasons, the judgment appealed is affirmed at plaintiffs’ costs.

AFFIRMED.


text:
    Nanette Renee HEBERT, Plaintiff-Appellant, v. MARYLAND CASUALTY COMPANY, Baton Rouge Area Chamber of Commerce and Dewayne Stroughter, Defendants-Appellees.
    No. 12347.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Rehearing Denied Feb. 12, 1979.

      Arthur Cobb, Baton Rouge, of counsel for plaintiff-appellant Nanette Renee Hebert.
    John S. White, Jr., Baton Rouge, of counsel for defendant-appellee Baton Rouge Area Chamber of Commerce and Maryland Casualty.
    William C. Bradley, Baker, of counsel for defendant-appellee Dewayne Stroughter.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

Nanette Renee Hebert brought suit against Dewayne Stroughter, the Baton Rouge Area Chamber of Commerce (Chamber of Commerce) and its insurer Maryland Casualty Company to recover for injuries she sustained when she was kicked in the leg by a horse owned and ridden by Stroughter. The accident occurred while she and Stroughter were participating in a parade sponsored by the Chamber of Commerce. The district court held for the defendants. Plaintiff appeals.

On March 6, 1976, the Chamber of Commerce held the Rodeo Round-Up Parade through downtown Baton Rouge. Bands, floats and some three hundred fifty horses organized into twenty-four mounted units participated. The Chamber of Commerce appointed four or five marshals to supervise the assembling of the mounted units. The executive vice-president of the organization testified that the parade sponsor in large part relied upon the riding groups to maintain order within their units and to exclude horses unsuitable for parade participation.

Miss Hebert, an experienced horsewoman, rode in the parade as a member of the East Baton Rouge Parish Sheriff's Posse. When the parade route had been completed and the mounted groups were returning to the area where their trailers were located, Miss Hebert and her friend Debbie Jones left their unit and rode ahead, passing several groups. Stroughter was riding his stallion in formation in the last line of the Baker Mounted Police Posse when Miss Hebert and Miss Jones approached from his rear. Stroughter’s stallion suddenly kicked with his two rear legs, one hoof hitting Miss Hebert’s right leg. Miss Hebert and Miss Jones were the only witnesses to the incident. Stroughter was facing forward and did not actually see the kicking.

Although there was testimony to the contrary, the trial court found that Miss Hebert was walking her horse when the accident occurred; that she did not precipitate the kicking by bumping into Stroughter’s stallion; but that the kicking was caused by her close approach to the horse from the rear. There being no manifest error, we adopt these findings of fact. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

The testimony of several experts on horse behavior established that many horses kick as an instinctive defense mechanism when they feel threatened by something behind them. Despite Miss Hebert’s disclaimer of such knowledge on her part, this characteristic was described as well known among people who had dealt with horses.

Expert testimony further revealed that as a rule stallions are more spirited and intractable than mares and geldings. Stroughter testified that his particular stallion was a well-mannered horse, which shortly before the rodeo parade had been ridden in a horse show by a twelve year old girl. He had ridden the horse in two other parades prior to the accident. Stroughter stated that he had never known his horse to bite or kick at anyone. Two other witnesses who were familiar with the stallion testified to the same effect.

According to Stroughter’s testimony, his horse was well-behaved throughout the rodeo parade until the accident with Miss Hebert. The leader of Stroughter’s unit said he was unaware of any trouble with the horse during the parade activities. However, one of plaintiff’s witnesses claimed to have seen the stallion kick in his direction when he rode past it before the parade began.

Plaintiff’s claim against the Chamber of Commerce is based upon Civil Code articles 2315 and 2316. While plaintiff now concedes that the Chamber of Commerce had no knowledge of any dangerous propensities in the stallion, she firmly maintains that the parade sponsor was negligent in failing to provide more marshals to supervise the parade activities. She argues that had there been a sufficient number of marshals the horses would have been screened more carefully and Stroughter’s stallion would have been found to be unfit to participate.

It is not necessary to determine if the actions of the Chamber of Commerce were negligent in order to dispose of plaintiff’s claim. Factual causation is a necessary element in an action for negligence, Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.1976); Follins v. Barrow, 354 So.2d 609 (La.App. 1st Cir. 1978), writ refused, 356 So.2d 434, and plaintiff has failed to show that the allegedly substandard conduct of this defendant was the cause-in-fact of her injury.

In Dixie Drive It Yourself System v. American Beverage Co., 137 So.2d 298 (La.1962), the Supreme Court stated that conduct is a cause-in-fact of harm if it is a substantial factor in bringing about that harm.

We are not convinced that additional marshals would have resulted in the removal of Stroughter’s stallion from the parade. The only evidence of misbehavior by the horse prior to the accident concerned the horse’s kicking once before the parade began. But even if a marshal had witnessed this incident, we do not believe the horse would have been removed from the parade. The evidence in the record on this horse’s training and general deportment convinces us that the horse would have passed the more thorough screening that additional marshals might have instituted. We conclude that the failure of the Chamber of Commerce to provide more marshals was not a cause-in-fact of the harm that befell plaintiff.

Miss Hebert’s claim against defendant Stroughter is based on Civil Code article 2321, as interpreted by the Supreme Court in Holland v. Buckley, 305 So.2d 113 (La.1974), wherein it was said:

“We hold, therefore, that the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.” (footnotes omitted)

Stroughter does not dispute the applicability to him of the strict liability doctrine of Holland v. Buckley. He contends, however, that he has rebutted the presumption of fault by showing that Miss Hebert’s injury was caused by her own fault.

We agree with the trial court’s finding that it was Miss Hebert’s action in crowding the stallion from its rear that caused the horse to kick. Left to be determined is whether her conduct constitutes fault.

Miss Hebert testified that as she approached the Baker Mounted Police Posse from the rear she was paying very little attention to the stallion to her right front. She readily admitted that she came within kicking distance of an unfamiliar horse without turning her head to observe it. In view of the testimony in the record on the kicking tendencies of horses and the widespread knowledge of this characteristic, we conclude, as did the trial court, that Miss Hebert’s inattentive approach to a position within kicking distance of the rear of an unfamiliar stallion fell below the standard of care to which a reasonable person should conform for his own safety and protection. Dupas v. City of New Orleans, 354 So.2d 1311 (La.1978); Crum v. Holloway Gravel Co., 273 So.2d 566 (La.App. 1st Cir. 1973), writ denied 276 So.2d 701. Her contributory negligence, i. e., fault of the victim, bars her recovery from Stroughter. Holland v. Buckley, supra; Parker v. Hanks, 345 So.2d 194 (La.App. 3d Cir. 1977), writ denied 346 So.2d 224; Dotson v. Continental Insurance Co., 322 So.2d 284 (La.App. 1st Cir. 1975), writ denied 325 So.2d 606 (1976).

For the reasons set forth above, the judgment of the district court is affirmed at appellant’s costs..

AFFIRMED.

      . Art. 2321. The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment.


text:
    John WRIGHT et al. v. Howard WRIGHT et al.
    No. 12349.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Rehearing Denied Feb. 12, 1979.

      Dan B. Cornett, Taylor & Cornett, Ltd., Baton Rouge, W. Hugh Sibley, Greensburg, for John Wright, et al. defendants-appel-lees.
    Roy L. Wood, Amite, C. Alvin Tyler, Baton Rouge, for Howard Wright, et al. plaintiffs-appellants.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

John Wright, Mary Wright Porter, S. A. Wright, Hollis Wright, Beatrice Wright James, Leroy Wright, David Morgan, Delores Morgan Atkins, Shirley Morgan, Lor-enso Morgan and Coretha Morgan Richardson, plaintiffs-appellees, filed suit against Howard Wright and James Wright, defendants-appellants, to have an act of sale from their father, Guy Wright, to defendants annulled and to be recognized along with the defendants as heirs of Guy Wright and to be placed into possession of the property which was the object of the sale.

On April 24, 1978, a preliminary default was taken against James Wright. On April 27, 1978, a preliminary default was taken against Howard Wright. On May 2, 1978, the default judgments were confirmed. The trial court held that the purported sale was a donation omnium bonorum and recognized and placed in possession the specified heirs. The defendants-appellants, Howard and James Wright, appealed, urging as specifications of error that the trial court committed error when it rendered judgment because there was insufficient proof to determine (1) that the sale in question was simulated, and (2) that the sale was a donation omnium bonorum.

Louisiana Code of Civil Procedure provides for the burden of proof when a default judgment is confirmed. La.C.C.P. art. 1702 provides in pertinent part:

“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” * * *

In Bonfouca Inv. Corp. v. Eubanks, 347 So.2d 1277 (La.App. 1st Cir. 1977) we held:

“In order to confirm a judgment by default, the plaintiff must prove the essential elements of the claim by competent evidence with legal certainty, as fully as though each allegation was specifically denied by the defendant.” (Citation omitted)

La.R.C.C. art. 2444 specifies the proof necessary to attack an act of sale between a parent and a child:

“The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale.” (Emphasis added)

At the hearing for confirmation of the defaults, the plaintiffs-appellees introduced the following evidence: the petition; the record of Suit No. 4844; the sheriff’s return of service on James and Howard Wright; the minute entries of the court showing the dates of preliminary defaults against defendants-appellants; the testimony of the clerk of court; and the testimony of two of the parties. The clerk of the court testified that no answer or responsive pleadings were filed in this case. John Wright took the stand and testified essentially that the allegations of the petition were correct. He also testified that he lived close to his father, saw him every day, that he would have known if his father had received any money around the time of the purported sale, and that James and Howard did not give anything to their father in exchange for the property. The only other witness to testify was S. A. Wright. He was asked if he had heard his brother’s testimony and did he believe it to be correct. He responded in the affirmative.

We do not believe this evidence is sufficient to establish a prima facie case that no price has been paid. The issue is how John Wright knew his father did not receive any money from this sale. His conclusion or opinion that no money was received by his father is not supported by any facts that would establish his familiarity with the money matters of his father. The only facts provided at the hearing were John’s testimony that he lived near his father and saw him every day. We find that these facts were not sufficient for the trial judge to conclude that John Wright had knowledge that his father received no money from the sale. We hold that plaintiffs have failed to establish a prima facie case. So holding, we need not consider appellants’ second specification of error.

The trial court also granted a judgment of possession after recognizing the heirs in the confirmation of a default judgment. We reverse. The petition for possession was not verified by an affidavit of one of the petitioners (La.C.C.P. art. 3002); the required proof of whether or not inheritance taxes were due was not provided (La. C.C.P. art. 3061, 2951 et seq.); and the requisite evidence to prove jurisdiction and heirship was not provided (La.C.C.P. art. 2821-2823, 3001-3008). These provisions of the Louisiana Code of Civil Procedure must be complied with for rendition of a judgment of possession.

For the reasons stated above, the judgment of the trial court is reversed and the case is remanded to the trial court for further proceedings. Costs of this appeal are assessed to the plaintiffs-appellees. All other costs are to await final disposition.

REVERSED AND REMANDED.

      . Suit No. 4844 of the Twenty-First Judicial District Court, Parish of St. Helena: This was a suit by Hollis Wright, S. A. Wright, John Wright, Mary Wright Porter and Leroy Wright against Howard Wright, James Wright and Guy Wright to annul an alleged fraudulent partition and to open the succession of Millie Small Wright and place the heirs in possession of one half of the property which is also the subject of this present suit.


text:
    John R. SCHULZE et ux. v. Donald R. LOVETT, et aL
    No. 12354.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.

      Sam J. D’Amico, Baton Rouge, of counsel for plaintiff-appellant John R. Schulze et ux.
    Frank M. Coates, Jr., Baton Rouge, of counsel for defendant-appellee Cumis Ins. Co.
    James A. Smith, II, Baton Rouge, of counsel for defendant-appellee Donald R. Lovett et al.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

Plaintiffs appeal the judgment of the trial court dismissing their claims for damages as a result of the death of their minor daughter, Karin Schulze. Their sole specification of error is that the trial court erred in finding the defendant driver, Mrs. Lo-vett, not guilty of negligence when she saw the decedent, a pedestrian, crossing the highway and took no precautionary measures to avoid striking the pedestrian.

In written reasons for judgment the trial judge made the following findings of fact and conclusions:

“This suit arises out of an accident in which Karin Schulze, the fourteen year old daughter of plaintiffs, was struck and killed by an automobile driven by Defendant Linda Lovett. The accident occurred on May 20, 1976, around Noon, when Karin, Bridgett Benoit, Jennifer Crosslin, and Debby Manning were preparing to cross Hooper Road in Baton Rouge. Hooper Road is a heavily traveled two-lane blacktopped road running in an east-west direction. At the time she was struck, Karin was ‘running or walking fast’ from the north side of Hooper toward the south side; she and Bridgette had both crossed the westbound lane of traffic. Bridgette stopped at the center line; Karin did not.
“Mrs. Lovett testified that on the date of the accident she was traveling in an easterly direction on Hooper Road at approximately forty miles per hour and she first saw the girls when she was three to four car lengths away. She took her foot off the accelerator and Karin Schulze stepped into her lane when she was only one car length away.
“Mr. Julius Dupuy testified that he was driving a gravel truck in the westbound lane on Hooper Road. He stated that he first saw the girls when he was four hundred to five hundred feet away from them and at that time they were standing on the edge of the road. They began crossing the road when he was about three hundred feet away. He then blew his horn, braked and was able to stop in time to avoid hitting them. He witnessed the accident.
“All of the witnesses testified that on that date the traffic on Hooper Road was heavy. Mrs. Lovett testified there was more than one vehicle passing her, going in the opposite direction. Mr. Dupuy said he could not be sure if there were any gravel trucks ahead of him. All three girls testified there is always a lot of traffic on Hooper.
“One of plaintiffs’ own witnesses, Bridgette, testified that there was a truck in front of Mr. Dupuy’s truck, traveling in a westerly direction. She testified she first saw defendant’s ear before that truck passed and as the truck passed, it blotted out the car. After the truck passed, she and Karin began crossing the road. She stated, T saw it before it went to the center. I knew it was coming so I stopped and waited for it to pass.’
“All three girls testified that immediately prior to the accident Debby had yelled at Karin to come back but it was too late.
“After reviewing all the evidence and testimony very carefully, this Court has determined that Linda Lovett was not negligent and therefore is not liable to plaintiffs. Mrs. Lovett was confronted with an unavoidable situation. She was traveling at a rate of forty miles per hour in a forty-five mile per hour speed zone, well within the speed limit, when the two girls appeared from behind an oncoming truck. Under these circumstances, it was impossible for Mrs. Lovett to avoid striking Karin when she stepped into the eastbound lane of traffic.”

Hooper Road at the point of the accident was twenty feet in total width with narrow shoulders and was fairly straight and level. The accident occurred just across the center line in the eastbound lane of travel with the point of impact on the Lovett vehicle being located on the extreme left front fender.

All of the witnesses testified that Karin proceeded across the westbound lane of Hooper Road at a fast walk or a run. When Debbie yelled at her, Karin only hesitated momentarily and proceeded into the eastbound lane.

We find no manifest error by the trial court in its determination that the defendant, Mrs. Lovett, was not guilty of any act of negligence or omission that contributed to the accident. The evidence can reasonably be held to show that Karin crossed the westbound lane immediately behind a westbound gravel truck at a fast rate of travel; that the heavy traffic on Hooper Road and, in particular, the gravel truck, obstructed the view of Mrs. Lovett preventing her from seeing the girls on the side of the road; and that this resulted in Mrs. Lovett being unable to see Karin and Bridgette until they were near the center of the road at a time when she was too close to them to take any evasive action.

The case of Ingram v. McCorkle, 121 So.2d 303 (La.App. 1st Cir. 1960) relied upon by appellants is factually distinguishable. In that case the driver’s view of the roadway was totally unimpeded and clear. Further, the young girl in that case had crossed nineteen feet of the roadway (Hooper Road) prior to the collision, whereas, in this case, Karin Schulze had only traveled a little over ten feet of the roadway, just across the center line.

For these reasons the judgment of the trial court is affirmed at appellants’ cost.

AFFIRMED.


text:
    James E. BRELAND and Janice I. Breland, Plaintiffs and Appellees, v. ALL AMERICAN ASSURANCE COMPANY, Defendant and Appellant, Howard Miley, Third Party Defendant.
    No. 12355.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.

      Jim W. Richardson, Jr., Bogalusa, counsel for plaintiffs.
    Durwood W. Conque, Abbeville, counsel for All American Assur. Co.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge.

This is an appeal by defendant, All American Assurance Company, from a judgment of the trial court which found that plaintiffs, James E. Breland and Janice I. Bre-land, were covered under a group health and accident insurance policy issued by it, and awarded benefits plus statutory penalties and attorney’s fees. Defendant also appeals the dismissal of its third party demand against Howard Miley, the agent who sold the policy.

On September 18, 1975, plaintiffs purchased a membership in the American Motor Club from Miley. The annual dues were $95, which the application stated had to be “paid in full within 60 days of date of application (or) the membership will automatically become null and void and the services and benefits will no longer be in force.” Plaintiffs paid $40, and were told by Miley that they could pay the $55 balance in monthly installments of $10 beginning December 1, 1975.

One of the benefits of membership is the group policy here sued upon.

On September 25,1975, Mrs. Breland was involved in an automobile accident and filed a claim on the group policy which was honored by defendant.

Plaintiffs sent a $10 payment to defendant on December 1,1975. Defendant negotiated plaintiffs’ check and accepted this partial payment.

Mrs. Breland was involved in another automobile accident on December 28, 1975, and thereafter filed another claim under the group policy.

Defendant denied this claim contending that its agent, Miley, had no authority to extend the 60 day delay for payment of dues and that, inasmuch as plaintiffs failed to pay the dues in full within the 60 day period, plaintiffs’ membership and their coverage under the group policy were automatically cancelled prior to the second accident.

The question presented is whether the benefit of the group insurance policy was “automatically” cancelled when plaintiffs failed to pay the dues in full within the stated period.

We answer in the negative. Louisiana’s insurance laws require that written notice of cancellation must be actually delivered or mailed to the insured before a cancellation can be effective. LSA-R.S. 22:636. See also LSA-R.S. 22:636.3 (added by Acts 1976, No. 203, sec. 1). Consequently, plaintiffs membership could have been automatically cancelled when the dues were not paid in full within the 60 day period, but coverage under the group policy could not have been cancelled without the notice required by LSA-R.S. 22:636.

Defendant argues that plaintiffs were informed by the application and by several correspondences that the membership and all benefits (including the group insurance coverage) would be cancelled absent payment in full.

We do not find that these anticipatory statements of possible cancellation satisfy the notice requirement of LSA-R.S. 22:636. The Supreme Court stated in Broadway v. All-Star Insurance Corporation, 285 So.2d 536, 539 (La.1973), in interpreting the notice requirement under LSA-R.S. 22:636:

“The purpose of notice of cancellation is to make known to the insured that his policy is being terminated and to afford him sufficient time to obtain other insurance protection.” (citation omitted).

The only effective notice of cancellation is dated January 15,1976, which is after the accident for which coverage is sought.

The trial court correctly found that the group policy afforded coverage to plaintiffs.

Defendant also contends that the trial court erred in assessing penalties and attorney’s fees, and in any event miscalculated the amount of the statutory penalty. Defendant argues that this suit involves a res novo issue of contract interpretation.

We believe that there is sufficient evidence to support the trial court’s award of penalties and fees under LSA-R.S. 22:657(A). This case is not concerned with either res novo issues or a question of interpretation of the insurance contract. To the contrary, it involves the denial of insurance benefits based on an attempted cancellation which did not in any way comply with the notice requirements of the insurance code. LSA-R.S. 22:636.

Regarding the amount of the statutory penalty to be assessed, the Third Circuit in O’Donovan v. Bankers Life and Casualty Company, 305 So.2d 643, 649 (La.App. 3rd Cir. 1974) stated:

“As to the amount thus due, LSA-R.S. 22:657(A) clearly provides for a penalty of ‘double the amount of health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court.’
“This ‘double the amount’ provision has, however, been interpreted to mean the plaintiff is only entitled to recover twice the amount of benefits due (or 100% of the benefits due as a penalty) rather than double the amount of benefits as a penalty, in addition to the amount of benefits.” (citations omitted).

Therefore, the trial court incorrectly assessed defendant double the amount due ($1,100) plus the amount of benefits ($550). This award will be reduced to allow a penalty of $550 together with the $550 due as benefits under the policy.

We do not believe that the trial court’s award of $1,000 as attorney’s fees should be modified, since we find it neither excessive nor inadequate.

THIRD PARTY DEMAND

Defendant contends that the trial court erred in dismissing the third party demand against Miley.

Miley has neither filed an answer nor made an appearance in the trial court. The record fails to show that a preliminary default was entered prior to the day of trial, January 3, 1978. Therefore the third party demand against Miley could not have been fixed for trial. LSA-C.C.P. art. 1571. See Welch v. Welch, 169 So.2d 713 (La.App. 4th Cir. 1964).

While defendant had a preliminary default entered against Miley on February 6, 1978, there is nothing in the record to show that this default was confirmed in accordance with LSA-C.C.P. art. 1702. Accordingly, no judgment could have been rendered on the third party demand.

For the above reasons, the judgment of the trial court is amended to reduce the statutory penalty to the sum of $550, amended to annul and set aside the part thereof that dismisses the third party demand against Howard Miley, and affirmed in all other respects at defendant’s cost.

AMENDED AND AFFIRMED.

      . We need not and do not reach the issues of 1) whether or not the agent exceeded his authority or 2) whether or not defendant is estopped from denying coverage.


text:
    Frank V. MOISE, Jr. v. LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 12367.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Writ Refused Feb. 16, 1979.
    William Courtney, Covington, of counsel for plaintiff-appellee, Frank V. Moise, Jr.
    Asst. Atty. Gen. William T. Reeves, Baton Rouge, of counsel for defendant-appellant, Louisiana State Employees’ Retirement System.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

Plaintiff-appellee, Frank Moise, Jr., has been the deputy judicial administrator for the Louisiana Supreme Court since August 1,1968. He was a member of the Louisiana State Employees’ Retirement System from August 1, 1968 through October of 1976. The 1976 Session of the Legislature passed Act 518 creating a Retirement Plan for Judges and Officers of the Court, La.R.S. 13:11 through 13:26. La.R.S. 13:13 lists those judges and court officers eligible to become members of the retirement plan provided by La.R.S. 13:11 through 13:26. Plaintiff-appellee’s position is listed in La. R.S. 13:13(2).

Paragraph A of La.R.S. 13:14 provides: “A. Each judge and court officer described in R.S. 13:13 who is in office on the effective date of this Part is hereby granted the option to become a member of the Louisiana State Employees’ Retirement System for a period of one hundred twenty days from said date by electing to avail himself within said time of all the benefits, emoluments, and conditions of said system as presently provided by R.S. 42:541 through R.S. 42:699, and of all benefits, emoluments, and conditions otherwise applicable to said system by the statutory laws of Louisiana, including the provisions of this Part.”

Plaintiff-appellee validly exercised the option described in this statute.

On January 20, 1978, plaintiff-appellee filed a petition for declaratory judgment making the Louisiana State Employees’ Retirement System defendant. Plaintiff-appellee contended that he could retire upon satisfying the eligibility requirements of La.R.S. 42:571 and have the survival benefits specified in La.R.S. 13:20. The declaratory judgment was sought to determine the rights, status and other legal relations existing between the parties since the Louisiana State Employees’ Retirement System had evidenced a contrary position.

The Louisiana State Employees’ Retirement System in La.R.S. 42:571(A)(3) provides that a member may be eligible for retirement if he has “Ten years or more of service, at age sixty or thereafter, if he earns retirement eligibility while in state service.” Plaintiff-appellee is more than sixty years of age and on August 1, 1978 had served ten years as the deputy judicial administrator of the Louisiana Supreme Court, and he is thus eligible under La.R.S. 42:571(A)(3) to retire.

La.R.S. 13:16 provides the eligibility requirements for retirement under the Retirement Plan for Judges and Officers of the Court as follows:

“A. (1) Any person covered by this Part who elects to become a member of the Louisiana State Employees’ Retirement System and who prior to application for service retirement has accumulated a total of at least eighteen years of creditable service as a judge or court officer shall be entitled to retire without regard to the age he has attained at the time he makes application for retirement.
“(2) Upon attaining a total of twenty years of creditable service, at least twelve years of which were as a judge or court officer, any such person shall be entitled to retire if he has attained the age of fifty years.
“(3) Upon attaining a total of at least twelve years of creditable service as a judge or. court officer, any such person shall be entitled to retire when he attains the age of fifty-five years.
“(4) Upon attaining the age of seventy years any such person shall be entitled to retire hereunder without regard to the number of years of creditable service as a judge or court officer.”

Therefore, as of August 1, 1978, plaintiff would not meet the eligibility requirements for retirement as provided in this statute.

La.R.S. 13:20 deals with survivor benefits. At the time this declaratory judgment was sought this section provided:

“Benefits for the surviving spouse, minor children, and handicapped or mentally retarded children of any deceased person enumerated in R.S. 13:13 who has elected to become a member of the Louisiana State Employees’ Retirement System shall be paid in accordance with the provisions of law applicable to survivors of members of the system; however, the benefits paid to any such surviving spouse shall not be less than one-third of the salary or compensation which was being paid to the deceased person at the time of death or retirement or an amount equal to one-half of the retirement pay which such person was entitled to receive or was receiving prior to his death, whichever is the greater. In addition, the minimum benefit for a surviving spouse shall be paid without regard to the number of years of creditable service accumulated in the system by the decedent.” (Emphasis supplied)

Two other provisions of the Retirement Plan for Judges and Officers of the Court are critical to a determination of the question presented. First, La.R.S. 13:24 provides for the rights of persons covered by this part:

“Any person covered by this Part who elects to become a member of the Louisiana State Employees’ Retirement System shall be immediately vested with all the benefits, emoluments, and conditions of the system and also with the additional benefits provided by this Part.” (Emphasis supplied)

Appellee argued that under La.R.S. 13:24 upon exercising the option granted to him in La.R.S. 13:14(A), he became immediately vested with all the benefits, emoluments, and conditions of both the Louisiana State Employees’ Retirement System and the additional benefits of the Retirement Plan for Judges and Court Officers. Appellant argued that under the same provisions that appellee can retire under one system or the other but he receives only those benefits from the system under which he retires. Thus, appellant argues if appellee retires under the authority of La.R.S. 42:571, he can only receive the survivor benefits provided for in Chapter 10, Title 42 of the Louisiana Revised Statutes.

Second, La.R.S. 13:26 deals with the applicability of laws governing Louisiana State Employees’ Retirement System, and provides:

“Except as otherwise provided in this Part the provisions of Chapter 10 of Title 42 of the Louisiana Revised Statutes of 1950 shall be applicable to persons covered by this Part.”

Appellant contended that La.R.S. 13:26 states that La.R.S. 42:541 et seq. applies except where La.R.S. 13:11-26 applies. Ap-pellee argued that the provisions of La.R.S. 42:541 et seq. are applicable only in those instances where La.R.S. 13:14-26 are silent.

The trial court found that the appellee was an eligible person under La.R.S. 13:13 who validly exercised his option as provided in La.R.S. 13:14; that under La.R.S. 13:24 appellee is given the benefits, emoluments, and conditions of the Louisiana State Employees’ Retirement System and the additional benefits of the Retirement Plan for Judges and Officers of the Court; and therefore appellee may retire by meeting the eligibility requirements of La.R.S. 42:571 and in so doing may receive the survivor benefits as provided in La.R.S. 13:20 if he so chooses. Appellant took a suspensive appeal from this judgment.

The judgment was signed on June 22, 1978. After the signing of the judgment the Legislature by Act 533 amended La. R.S. 13:20. Act 533 became effective on September 8, 1978, sixty days after the final adjournment of the session in which it was enacted. It provides in pertinent part:

“A. Benefits for the surviving spouse, minor children, and handicapped or mentally retarded children of any deceased person enumerated in R.S. 13:13 who has elected to become a member of the Louisiana State Employees’ Retirement System shall be paid in accordance with the provisions of law applicable to survivors of members of the system; however, the benefits paid to any such surviving spouse shall not be less than one-third of the salary or compensation which was being paid to the deceased person at the time of death or retirement or an amount equal to one-half of the retirement pay which such person was entitled to receive or was receiving prior to his death, whichever is the greater. In addition, the minimum benefit for a surviving spouse shall be paid without regard to the number of years of creditable service accumulated in the system by the decedent.
“B. Notwithstanding any other provision of law to the contrary, the provisions of this Section shall be applicable only to survivors of members actively serving in those positions provided for in R.S. 13:13 and survivors of those who have retired pursuant to R.S. 13:16. These provisions shall not apply to survivors of members who retire pursuant to R.S. 42:571 and R.S. 24:36C.” (Emphasis supplied)

Section B of La.R.S. 13:20 (as amended, 1978) clearly states that its provisions do not apply to survivors of members who retire pursuant to La.R.S. 42:571. Since this entire litigation revolves around whether or not plaintiff-appellee can retire pursuant to La.R.S. 42:571 and receive the benefits of La.R.S. 13:20, we must answer the question of whether Act 533 affects the rights of the parties to this litigation.

The litigants have stipulated to this court that plaintiff-appellee would be eligible under La.R.S. 42:571 to retire on August 1, 1978; that he did not retire on that date and has not yet retired. Additionally, when the trial court rendered judgment it did not have the amendment to La.R.S. 13:20 before him to consider since it was not yet law.

Therefore, we will first dispose of the issue of whether Act 533 of 1978 affects the plaintiff-appellee’s rights. The question is resolved by answering whether plaintiff-ap-pellee’s rights would be divested by this new law.

The 1974 Louisiana Constitution in Article 10 § 29(B) provides in part:

“. . . Membership in any retirement system of the state or of a political subdivision thereof shall be a contractual relationship between employee and employer, and the state shall guarantee benefits payable to a member of a state retirement system or retiree or to his lawful beneficiary upon his death.”

Under this provision once retirement rights vest, they are contractual obligations that cannot be divested by virtue of the Louisiana Constitution of 1974, Art. 1 § 23 which states in part that no law impairing the obligation of contracts shall be enacted. Professor Hargrave in an excellent law review article stated:

“The traditional prohibition against ex post facto laws and laws impairing the obligation of contracts stems from Article IV, § 15 of the 1921 Constitution and from Article I, § 9 and 10 of the United States Constitution. The existing jurisprudence under those provisions is continued . . .” (pg. 66)

In examining the prior jurisprudence we find that three separate classifications are made with regard to participants of actuarially funded retirement systems: (1) those eligible to retire and who actually retire; (2) those eligible to retire but who choose not to actually retire; and (3) those not yet eligible to retire. In the instant case plaintiff-appellee is now eligible to retire under La.R.S. 42:571 but has not actually retired. We note that there is a split of authority concerning the vesting of rights of those who, like the plaintiff-appellee, are eligible to retire but do not retire. This line of jurisprudence, while providing guidance to us is not controlling in the instant case because La.R.S. 13:24 specifically provides “vesting” language which we repeat here for emphasis:

“Any person covered by this Part who elects to become a member of the Louisiana State Employees’ Retirement System shall be immediately vested with all the benefits, emoluments, and conditions of the system and also with the additional benefits provided by this Part.” (Emphasis supplied)

While on the contrary, La.R.S. 42:543(33) provides:

“ ‘Vested right’ means when a member obtains retirement eligibility as to age and service in accordance with this Chapter.”

We find that plaintiff-appellee is a person covered under La.R.S. 13:11-26, specifically La.R.S. 13:13(2); that he elected to become a member of the Louisiana State Employees’ Retirement System as provided by La. R.S. 13:14; and that he was- upon that election immediately vested with all the benefits, emoluments, and conditions of that system and also with the additional benefits provided by the Retirement Plan for Judges and Officers of the Court.

We find the language of La.R.S. 13:24 to be clear, specific, and free from ambiguity. The vesting of rights provisions in La.R.S. 42:543(33) do not apply to him because the language in La.R.S. 13:24 precludes its application in this instance.

Therefore, the 1978 amendment to La. R.S. 13:20 cannot affect this plaintiff-appel-lee because before this new law went into effect the plaintiff-appellee, by exercising his option under La.R.S. 13:14, was already vested with certain rights that could not be withdrawn by subsequent legislation.

What are the rights plaintiff-appellee was vested with? The appellee brought a declaratory judgment action to answer this question. In La.R.S. 13:24 and in La.R.S. 13:14 the language clearly states what rights a person covered by La.R.S. 13:11-26 receives. They receive the benefits, em'-.L-ments, and conditions of Title 42 and the benefits, emoluments and conditions of the Retirement Plan for Judges and Officers of the Court. The use of the conjunctive “and” indicates that it was the express intention of the Legislature in creating the Retirement Plan for Judges and Officers of the Court to allow those persons eligible under La.R.S. 13:13 and who elect to join the Louisiana State Employees’ Retirement System to receive the maximum in benefits.

Effectively this means that a person, such as plaintiff-appellee, can retire under La. R.S. 42:571 and receive the benefits of La. R.S. 13:20. The reverse is also true; a person covered by the Retirement Plan for Judges and Officers of the Court could retire under La.R.S. 13:16 and he or his survivors can receive benefits as provided in Title 42, if they are more advantageous than those otherwise afforded. The best combination of both systems, the Louisiana State Employees’ Retirement System and the Retirement Plan for Judges and Officers of the Court, is available to plaintiff-appellee. We find that by the enactment of the Retirement Plan for Judges and Officers of the Court, the legislature provided for a combination of retirement eligibility requirements and a combination of retirement benefits.

Defendant-appellant argued that La.R.S. 13:26 requires that La.R.S. 42:541 et seq. applies except where La.R.S. 13:11-26 applies, and therefore La.R.S. 13:26 precludes the interpretation we have given to La.R.S. 13:24. We disagree.

The language of La.R.S. 13:26 is clear and “Except as otherwise provided in this Part” means just that. La.R.S. 13:24 has otherwise provided as we have stated above. We believe the plain meaning of La.R.S. 13:26, when read with the other provisions of La.R.S. 13:11-26, is that where the Retirement Plan for Judges and Officers of the Court is silent then the provisions of Title 42, Chapter 10 of the Louisiana Revised Statutes will apply.

For these reasons we affirm the trial court at appellant’s costs. Segura v. Louisiana Architects Selection Bd., 362 So.2d 498 (La.1978).

AFFIRMED.

      . By letter dated October 11, 1977, Vernon L. Strickland, Executive Director of the Louisiana State Employees’ Retirement System, advised the Honorable William M. Dawkins that if he retired under the eligibility provisions of 42:571, his survival benefits are controlled exclusively by R.S. 42:577.

      . 1978, La.Acts, 533, amending La.R.S. 13:19 and 13:20.

      . Hargrave, L., The Declaration of Rights of the Louisiana Constitution of 1974, 35 L.L.Rev. 1, (1974).


text:
    RUE LAFAYETTE MORTGAGE CORPORATION et al., Plaintiffs and Appellants, v. Marie H. WENGER, Mayor, Town of St. Francisville et al., Defendants and Appellees.
    No. 12379.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1978.
    Rehearing Denied Feb. 12, 1979.
    Robert L. Roland, Baton Rouge, for plaintiffs and appellants.
    Jesse L. Means, St. Francisville, James D. Thomas, II, Charles O. Simmons, Jr., Baton Rouge, for defendants and appellees.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

Petitioners Rue Lafayette Mortgage Corporation (Rue Lafayette) and Steve Allen seek a writ of mandamus directing the officials of the Town of St. Francisville to issue to them an occupancy permit allowing the use of their premises as a mobile home park. The town’s refusal to issue the permit due to non-compliance with the Trailer Park & Mobile Home Ordinance was upheld by the lower court. Petitioners appeal. We affirm.

The property in question is a tract of approximately 4.8 acres, most of which was originally owned and developed by Seigen Development, Inc., the owners of an adjacent motel. Improvements on the premises consist mainly of sewerage lines, utility outlets, concrete drives, bathroom facilities and fifty-one concrete parking pads. Construction was done pursuant to a duly issued building permit. Seigen Development operated on the tract the Holiday Inn Trav-L Park. This business continued, without protest from the town, until July 21, 1976, when Rue Lafayette foreclosed on its mortgage and purchased the property at the sheriff’s sale. On August 3, 1976, Rue Lafayette entered into a written lease of the premises with Steve Allen.

Allen desires to use the property as a mobile home park, perhaps reserving a few spaces for short stays by recreational vehicles. He contemplates owning some thirty-six to forty trailers and renting them for use as residences.

Repeated requests by Allen and Rue Lafayette for a permit authorizing use of the premises for this purpose were denied.

Town officials maintain that the proposed use would be in violation of the town’s Trailer Park and Mobile Home Ordinance because the premises do not satisfy the requirements of that law. Petitioners do not seriously dispute their failure to meet the conditions of the trailer park ordinance. Their position is that they do not have to satisfy these requirements because the ordinance is inapplicable for one of the following two reasons: (1) the statutory procedure for the enactment and recording of municipal ordinances was not complied with and therefore the ordinance is invalid; (2) even if the ordinance is valid, it does not apply to these premises because they are excluded from its scope by a provision which allows the continued operation of trailer parks established prior to the effective date of the ordinance.

VALIDITY OF THE ORDINANCE

St. Francisville is a municipality chartered under the Lawrason Act, which is set forth at La.R.S. 33:321, et seq. R.S. 33:406 details the procedure to be followed in enacting, promulgating and recording ordinances. In pertinent part it reads as follows:

“All ordinances shall be read and considered by sections at a public meeting of the mayor and board of aldermen, and, if adopted, shall be signed by the mayor or other officer presiding in his absence. . A vote shall never be taken on an ordinance not previously reduced to writing. . . . The clerk shall keep a book to be styled ‘Ordinances, City (or Town, or Village) of.,’ in which he shall file the original of every ordinance which has been adopted immediately after its passage . . . .”

The town clerk of St. Francisville testified that original ordinances were not placed in the town’s ordinance book as directed by the above statute, but instead were kept loose in a filing cabinet. The ordinance book contains instead typed copies of the original ordinances.

At the time of trial, the original copy of the Trailer Park and Mobile Home Ordinance could not be found. A certified copy of the ordinance book entry was introduced into evidence. The ordinance book did not indicate that the original ordinance had been signed by the mayor. The clerk testified that it was her practice when copying an original ordinance to indicate a signature by the symbol “s/”; that she had not done so on this entry in the ordinance book; but that nevertheless she “believed” the mayor had signed the missing document. However, she readily admitted that she did not actually remember whether it had been signed. The minutes of the town meeting at which the trailer park ordinance was adopted show that the mayor was in attendance and presided.

Petitioners argue that the improperly kept ordinance book and the lack of the mayor’s signature are deviations from the requirements of R.S. 33:406 which invalidate the ordinance. We disagree.

The importance of maintaining logically ordered, readily accessible, legible and complete records of the official acts of a governing body is obvious. Such well-kept records are the objective of the statute directing the establishment of an ordinance book. However, we feel it would be unduly harsh and restrictive to hold an otherwise valid ordinance void simply because the original copy was placed in a file drawer instead of in the ordinance book when the town otherwise maintains records and minutes as required by law. We are supported in our opinion by the Supreme Court in the case of Town of Crowley v. Rucker, 107 La. 213, 31 So. 629 (1902), wherein it is stated that “[t]hat part of the statute referred to, providing for the inscription of ordinances adopted by municipalities in a book kept for that purpose, is directory merely.”

Pretermitting the factual determination of whether the original ordinance was actually signed by the mayor, we hold that a mayor’s failure to sign does not invalidate an ordinance. Several cases in the jurisprudence of this state have dealt with this issue. See, Town of Opelousas v. Andrus, 37 La.Ann. 699 (1885); Town of Mandeville v. Band, 111 La. 806, 35 So. 915 (1904); Town of New Iberia v. Moss Hotel Co., 112 La. 525, 36 So. 552 (1904). However, the holdings of these cases are distinguishable as each involved the interpretation of language found in town charters and not the language of § 406.

The signing requirement was added to § 406 by Acts 1948 No. 364. R.S. 33:404, which is entitled, “Duties of mayor,” included no mention of the signing of ordinances prior to its amendment by Acts 1970 No. 119 § 1. The amended text reads in pertinent part as follows:

“The mayor shall preside at all meetings of the board of aldermen, and in case there is an equal division, he shall give the deciding vote. . The mayor shall have ten calendar days after any law, bylaw or ordinance shall have been presented to him by the board of aider-men within which to approve or veto it. If he approves it, he shall sign it; if not, he shall return it to the board of aider-men with his objections. The board of aldermen after receipt of the mayor’s veto message may at the next regularly scheduled session reconsider the law, bylaw or ordinance and may override the veto by a two-thirds vote of the elected membership. If the mayor neither signs nor vetos the law, bylaw or ordinance within the prescribed ten calendar days it shall become effective as if he had signed it. (Emphasis added.)

Laws in pari materia are to be construed together, giving recognition to the rule that later laws may impliedly repeal or modify contrary provisions in earlier enactments. C.C. arts. 17, 22, 23.

A reading of §§ 404 and 406 side by side leaves no doubt that, at least since 1970, the mayor’s signature is not a prerequisite to the validity of an ordinance.

In summary, we hold, in full agreement with the lower court, that the procedural irregularities pointed out by petitioners did not render the Trailer Park and Mobile Home Ordinance invalid.

NON-CONFORMING USE

Section 5(c) of the Trailer Park and Mobile Home Ordinance expressly exempts from its provisions trailer parks existing prior to its effective date of April 9, 1975. Petitioners take the position that the Holiday Inn Trav-L Park, which was in operation when the ordinance went into effect, was a non-conforming use which puts the premises beyond the scope of the ordinance. Town officials, on the other hand, argue that the prior use of the premises was as a camper or recreational vehicle park, not as a mobile home park; that it thus does not qualify as a non-conforming use under the trailer park ordinance; and that, therefore, it is subject to the requirements set forth in that ordinance.

Petitioners do not seriously contend that the park operated by their predecessor in title was a mobile home park. The evidence shows that the Holiday Inn Trav-L Park served smaller vehicles known as campers or recreational vehicles, which generally stayed only short periods of time. Petitioners freely acknowledge, as they must, that there is a difference between recreational vehicles and mobile homes. As the judge a quo noted, the latter are generally larger, more stationary and are occupied on a more permanent basis. Petitioners maintain, however, that the ordinance does not make a distinction between the two types of vehicles and includes within the term “trailer park” a facility for recreational vehicles. If their position is correct, the exemption for existing trailer parks would cover the Holiday Inn Trav-L Park.

Section 2 of the ordinance lists the following definitions:

a. MOBILE HOMES OR TRAILERS means a vehicle used for living and sleeping quarters and standing on wheels or on a rigid support.
b. MOBILE HOME PARK OR TRAILER CAMP is a tract of land which is used or held out to the public for the purpose of supplying a parking space for two or more mobile homes or trailers.
c. CAMPER-TRAILER is a recreational vehicle standing on wheels.

Petitioners point out quite correctly that the definition of “mobile homes or trailers” is broad enough to cover a recreational vehicle or camper. Nevertheless, it is clear from a reading of the entire ordinance that the aldermen who drafted it did not intend that definition to have such a wide sweep.

We interpret the listing of a separate definition for “camper-trailer” as an attempt to distinguish the camper from the larger trailer. Had the definition of “mobile homes or trailers” been intended to include camper-trailers, it would have been a simple matter to indicate this expressly in the definition of the former. In the absence of such a statement, the most logical conclusion is that the two definitions are mutually exclusive.

It should be noted that the term “mobile home park or trailer camp” is defined in terms of “mobile homes or trailers,” no mention being made of camper-trailers. Also the list of restrictions on trailer parks is prefaced with the following language: “It shall be unlawful for any person to open or operate a trailer park . . .for the purpose of supplying parking space for two or [more] mobile homes, unless such person shall first obtain a permit. . . . ” (Emphasis supplied). Once again the use of the term “mobile home” and the failure to use “camper-trailer” indicates the limited scope of the ordinance.

A further indication of the Board of Aldermen’s intent is found in 4(a)(9), which states:

“There may be established a separate or optional area for overnight campers which area shall be provided with central facilities.”

This is additional proof that there existed in the minds of the drafters a definite distinction between mobile homes or trailers and recreational vehicles. The fact that space for recreational vehicles is mentioned only as “a separate or optional area” in a mobile home park is a clear indication that the other provisions of the ordinance are not directed at parks exclusively for recreational vehicles.

For the above reasons, we conclude that the Trailer Park and Mobile Home Ordinance does not apply to recreational vehicle parks that are not part of mobile home camps. Therefore, it follows that the prior use of petitioner’s premises as a camper park does not qualify as a non-conforming use exempting the tract from the requirements of the ordinance. There being little doubt that petitioners have not satisfied the conditions of the trailer park ordinance, the writ of mandamus should not issue.

The judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.

      . “This ordinance has no application to any trailers or trailer parks already established or located within the corporate limits of the Town of St. Francsville prior to the effective date, of this ordinance, said trailers or parks hereafter considered as non-conforming uses to which the terms of this ordinance does (sic) not apply.”