author: MORRIS, Judge.

text:
    John P. BREAUX et al., Plaintiffs-Appellee, v. RIMMER & GARRETT, INC., et al., Defendant-Appellant.
    No. 5083.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      Marshall W. Wroten, Baton Rouge, for third party defendant-appellant.
    Anderson, Leithead, Scott, Boudreau & Savoy by Norman F. Anderson, Lake Charles, for plaintiff-appellee.

      Aaron, Aaron & Chambers by Noble M. Chambers, Jr., Crowley, for defendant-third party plaintiff-appellee.
    Before DOMENGEAUX, WATSON and MORRIS, JJ.
   MORRIS, Judge.

Plaintiff landowners brought this suit against defendant, Rimmer & Garrett, Inc. (hereinafter sometimes referred to as the contractor), to recover the value of 6,600 linear feet of S-inch steel pipe removed from their property by defendant and retained in defendant’s possession. State of Louisiana, Department of Highways, was made a third-party defendant.

On April 28, 1934, John Breaux, the predecessor in title of the present plaintiffs, granted unto Barnsdall Pipeline Company a right-of-way “to lay, maintain, operate and remove a pipeline” on certain property situated in Calcasieu Parish for the transportation of oil and gas. This grant of right-of-way was filed of record on May 11, 1934 and recorded in the conveyance records of Calcasieu Parish.

In 1967 the owners granted unto the State of Louisiana, Department of Highways, (hereinafter sometimes referred to as the department) a right-of-way on, over and across property which included that subject to the 1934 pipeline right-of-way. In 1974 the Department of Highways entered into a contract with Rimmer & Garrett, Inc. for the construction of a concrete paved highway on the property thus acquired. This contract also provided for the removal by Rimmer & Garrett, Inc. of the 5-inch pipeline located on the property, for which the contractor was to be paid 75$ per linear foot. The contract specifically provided that:

“Removed pipe shall be disposed of beyond the limits of highway right-of-way with written permission of the property owner on whose property the material is placed.
“Removal of pipe will be measured along the center line of pipe in its original position, and payment will be made at the contract unit price per linear foot, which includes all excavation, removal and disposal of pipe, backfilling, and all work necessary to complete the item. Payment will be made under: Item S-7, removing 5" pipeline, per linear foot.”

Contractor proceeded to remove the 5-inch pipe from plaintiffs property and disposed of same by hauling it to its place of business and, so far as the record shows, retaining possession thereof. Plaintiffs do not sue for possession of the pipe, but only the market value at the time of removal.

Defendant filed an answer denying liability and made the State of Louisiana, Department of Highways, a third party defendant, alleging that it was acting under the contract and any judgment recovered against defendant should also be rendered in favor of defendant and against the State of Louisiana, Department of Highways, in the same amount that defendant might be cast.

At the trial of this matter testimony was elicited without objection that the pipeline was last used 17 years prior to its removal. A letter from Mobil Oil Corporation, apparently the successor of the right-of-way grantee, addressed to the Department of Highways, dated June 14, 1967, was admitted in evidence without objection. This letter states that the 5-inch pipeline was an abandoned oil line. In a written stipulation of facts it was agreed that the pipe had a fair market value of $1,980.00 at the time of removal.

Judgment was rendered in the district court in favor of plaintiffs and against defendant, Rimmer & Garrett, Inc., in the sum of $1,980.00, the amount stipulated by the parties to have been the value of the pipe removed, with legal interest from date of judicial demand until paid and for all costs. Judgment was also rendered in favor of Rimmer & Garrett, Inc. and against the third party defendant, Department of Highways, State of Louisiana, in the same amount, together with all costs required by law to be paid by the Department of Highways. The Department of Highways alone appeals from this judgment, and none of the other parties have answered the appeal. The judgment against Rimmer & Garrett, Inc. on the main demand is, therefore, final. LSA-C. C.P. Art. 2133. However, in view of the provisions of .LSA-C.C.P. Art. 1115 which provide that a third party defendant may assert against the plaintiff in the principal action any defenses which the third party plaintiff has against the principal demand, we deem it necessary to review the issues presented in the trial court, although the judgment against Rimmer & Garrett, Inc. cannot be changed. See Meaux v. Hoffpauir, 219 So.2d 551 (La.App.3rd Cir. 1969) and particularly footnote 5, p. 556, Writ ref. 253 La. 1096, 221 So.2d 522.

We agree with the trial judge that plaintiffs were the owners of the pipe at the time of its removal from the property. However, plaintiffs did not become the owners of the pipe by the mere extinguishment of the servitude by non-usage for ten years.

The pipeline right-of-way provided for a right of removal, but expressed no time for removal. An analogous situation was presented in several cases dealing with mineral servitudes and the removal of drilling equipment and pipe. In Standard Oil Company of Louisiana v. Barlow, 141 La. 52, 74 So. 627 (1917), involving an oil and gas lease, the court had under consideration the removal of equipment by the lessee upon termination of the lease. The contract into which the litigants had entered conferred upon the lessee “the right to remove all machinery, fixtures and improvements placed [on the leased premises] at any time.” The court held that if the lessee defers the removal of his equipment for so long a time as to authorize the belief that he has abandoned it, the property would vest in the lessor, but otherwise the lessee is entitled to a reasonable time after the expiration of his lease within which to take such action. In Donnell v. Gray, 34 So.2d 648 (La.App. 2d Cir. 1948), which also involved a mineral lease or servitude and the right to pipe and equipment left on the leased premises, Judge Hardy as organ of the court reviewed extensively the jurisprudence both in this state and other jurisdictions regarding the right to equipment upon an extinguished servitude. The court held that the right to remove “at any time” in the lease agreement was synonymous with the phrase “a reasonable time” and found that an act of abandonment had been conclusively established entitling the land owner to the abandoned equipment. Although this case was reversed by the Louisiana Supreme Court [215 La. 497, 41 So.2d 66 (1949)], the reversal was based on a finding that the proof was insufficient to prove an abandonment. The court held that under LSA-C.C. Art. 3421, in order to vest title and control in the landowner there must be an act of abandonment coupled with an intent to abandon.

Although no time for removal of the pipe was expressed in the right-of-way grant herein, a reasonable time is implied. Guzzo v. Liggio, 224 La. 313, 69 So.2d 357 (1954); Schnauder v. Rojas, 292 So.2d 754 (La.App. 4th Cir. 1974). According to the testimony there was a period of 7 years after the expiration of the servitude for non-user in which the grantee made no effort to recover the pipe, and the “reasonable time” for the exercise of the right to remove had long since expired. Furthermore, the letter from Mobil Oil Corporation addressed to Louisiana Department of Highways states that the oil line had been abandoned. Proof of abandonment is conclusive and ownership of the pipe became vested in the landowners under LSA-C.C. Art. 3421 and the rationale of the above cases.

The second issue presented in the trial court was whether the landowners transferred ownership to the Department of Highways in the right-of-way deed. This deed conveys only a servitude and contains the following language, to-wit:

“It is understood and agreed that, in the construction and maintenance of said highway, Department may move to or remove from the property herein described. earch or other material in accordance with usual highway construction and maintenance practices.”

No ownership was conveyed to the department by this language and we agree with the trial judge that the entire purpose of the provision was to make it possible for the department to construct the highway, and to accomplish that purpose the department must of necessity have the right to remove any obstruction from the right-of-way. That was the obvious purpose of the above quoted paragraph, and we cannot construe this paragraph as conveying any ownership.

Concluding that plaintiffs had become owners of the pipe by virtue of the abandonment and that they had not conveyed ownership in the right-of-way deed, leaves the question of liability of the contractor for the value of the pipe removed. During the removal of the pipe Charles W. Breaux, one of the plaintiffs, asserted a right of ownership and possession, and requested that the workmen roll the pipe over on the adjacent property which plaintiffs owned. Even the contractor’s employee admitted that there was some statement to that effect by Mr. Breaux, although he attached a different meaning to the words. It is manifest, however, that plaintiffs were asserting some ownership of the pipe and a right to possession. When the contractor disposed of the pipe by taking possession thereof as owner it became liable to the true owner for the market value. Liability of Rimmer & Garrett, Inc. is based upon LSA-C.C. Art. 532 which provides that damages may be recovered against those who have employed materials belonging to others, unknown to them, according to the circumstances. The contractual obligation “to remove and dispose of” would not affect the rights of the true owners, or convey ownership.

The Department of Highways defends the third party demand on the basis of the hold harmless clause contained in its contract with Rimmer & Garrett, Inc. This contractual provision provides as follows:

“107.15. RESPONSIBILITY FOR DAMAGE CLAIMS. The contractor shall indemnify and save harmless the Department, its officers and employees from all suits, actions or claims of any character brought because of any injuries or damage received or sustained by any person, persons or property on account of the operations of the said contractor ; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or omission, neglect or misconduct of said contractor; or because of any claims or amounts recovered from any infringements of patent, trademark or copyright; or from any claims for amount arising or recovered under the “Workmen’s Compensation Act” or any other law, ordinance, order or decree; . . . .”

The department claims that this indemnity clause relieves it of responsibility for the contractor’s performance even though contractor has done only what the contract called for.

Indemnity agreements must be strictly construed, especially when a party seeks to be indemnified for damage caused by its own negligence. Jurisich v. Louisiana Southern Oil & Gas Co., 284 So.2d 173 (La.App.4th Cir. 1973). If the contract of indemnity is to be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, such intention must be expressed in unequivocal terms. Green v. Toca International Airlines, 304 So.2d 357 (La.Sup.Ct.1974). In Arnold v. Stupp Corporation, 205 So.2d 797, (La.App., 1st Cir. 1967) the court had under consideration an indemnity clause similar to the one in the present matter, and the court observed that the general words “any and all liability” do not necessarily import an intent to impose an obligation so extraordinary and harsh as to render an indemnitor liable to an indemnitee for damages occasioned by the sole negligence of the latter. In Buford v. Sewerage and Water Board of New Orleans, 175 So. 110 (La.App.Orl.1937) the indemnity clause was so broad as to indemnify against “all suits or actions of any name or description brought against them [the indemnitees] for or on account of any injuries or damages received or sustained by any party or parties by or from said Contractor, his servants or agents in the construction of said work.” The court held that this language did not express a clear intent to indemnify the indemnitee from its own fault or neglect. LSA-C.C. Art. 3039 also requires that surety agreements be restrained within the limits intended by the contract.

The effect to be given to the hold harmless clause under consideration in the present matter depends upon the intention of the parties, which is the foremost requirement in the interpretation of any contract. LSA-C.C. Art. 1945. This clause commences with a general indemnification against all actions of any character for injuries or damages received on account of the operations of the contractor. If these words mean what they say, and had that been the intention of the parties, nothing further would have been required. Yet this phrase is followed by specific words providing for (1) indemnification for neglect or misconduct of the contractor, (2) indemnification for use of unacceptable materials, (3) indemnification on patent infringements, and (4) indemnification from workmen’s compensation claims. It is a general rule of construction of contracts that, unless a contrary intention appears from the contract as a whole, the meaning of general words will be restricted by the more specific terms or descriptions of the subject matter. Mixon v. St. Paul Fire & Marine Ins. Co. of St. Paul, Minn., 147 La. 302, 84 So. 790 (1920); Lafleur v. Sylvester, 135 So.2d 91 (La. App. 3rd Cir. 1961); LSA-C.C. Arts. 1959-1961. Therefore, we feel constrained to hold that the general words of the hold harmless clause are restricted by the more specific words of indemnification. The clause does not constitute an unequivocal expression of an intent to make the contractor liable for the acts of the Department of Highways on matters for which the department was responsible. The obvious purpose of the indemnity clause, considered as a whole, was to make the contractor liable for matters within its orbit of responsibility.

The removal and disposal of the pipe by Rimmer & Garrett, Inc. was required by the contract with the department. The Department of Highways assumed the responsibility in the contract of ordering the disposal, mistakenly believing, we think, that the department was the owner of the pipe. In this the department may have been influenced by the letter from Mobil Oil Corporation, which in addition to declaring the pipeline abandoned, follows with the statement:

“Mobil hereby relinquishes all its rights in this line within the project right-of-way to the Louisiana State Highway Department.”

The rights of the department, however, cannot be greater than the rights of the pipeline servitude grantee, and as herein-above shown the rights of that grantee had long ago terminated. Mobil Oil could not vest in the department greater rights than it had.

It is also obvious from the contract that the department considered the pipe non-salvageable, for the only requirement was that the contractor obtain permission from any landowner on whose property the pipe was placed. This was to protect the department from damage claims or the necessity of making a subsequent disposal of the pipe. Had this been considered a salvageable item the department would have provided in the contract for delivery to itself, not the disposal thereof. The department undertook the responsibility of ordering and contracting for the disposal of the pipe. It had the obligation of determining whether it had a right to require this disposal, which could only be based on a proprietary interest. It undertook to contract for the disposal of the pipe and further left the manner of disposal entirely to the discretion of Rimmer & Garrett, Inc., except as to the above noted requirement of landowner permission. The contractor did what it was obligated to do under the contract — remove and dispose of the pipe. In so doing the contractor was guilty of no wrong-doing, neglect or fault, insofar as the department is concerned. It was not up to the contractor to determine or question the proprietary interest asserted by the department in the contract, and the hold harmless clause does not operate to relieve the department of its responsibility, which was to properly determine its rights in and to the pipe before directing its removal.

Third party defendant relies heavily on Chaney v. The Travelers Insurance Company, 259 La. 1, 249 So.2d 181 (1971) which we do not, however, find applicable. In that case damages were inflicted by the failure of the contractor to take such precautions in the use of heavy equipment that the neighboring landowner would not be injured, a responsibility which, the Court held, was as much that of the agent or contractor of the proprietor under LSA-C.C. Art. 667 as the owner himself. There was no question of the intent to indemnify against the wrongful acts of the indemnitee, for the wrongful act was also that of the indemnitor. They were equally responsible for the acts which caused the damages. In the present matter the claim of plaintiffs arose from a matter in which the department was solely responsible, for it was incumbent upon the department when contracting for the removal and disposal of the pipe to determine at its risk that it had the proprietary right or ownership in the pipe necessary to direct that this be done. The cited case and the instant matter do not present the same situation for consideration.

For the reasons assigned, the judgment of the trial court is affirmed at the department’s cost.

Affirmed.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    RELIANCE INSURANCE COMPANY and G. D. Cook, Plaintiffs-Defendants in Reconvention-Appellants, v. UNITED STATES FIDELITY & GUARANTY CO. et al., Defendants-Plaintiffs in Reconvention-Appellees.
    No. 5151.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      Stafford, Pitts & Stafford by Hodge O’Neal, Alexandria, for plaintiffs-appellants.
    Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, William C. Boone, Leesville, Voltz & Ware by Gus Voltz, Jr., Alexandria, for defendants-appellees.
    Before DOMENGEAUX, WATSON and BEER, JJ.
   DOMENGEAUX, Judge.

This is a suit for damages arising out of a collision between a log truck belonging to G. D. Cook, while being driven by his employee, George Moore, and a pickup truck which was towing a boat and trailer owned by Joe and Betty Bellino, and being driven by the latter. The collision occurred on January 21, 1972, in Vernon Parish, Louisiana. G. D. Cook and his liability and collision insurer, Reliance Insurance Company, originally filed suit against the defendant Bellino couple' and their liability insurer, United States Fidelity & Guaranty Company (USF & G), for damages arising out of the collision. The Bellinos and their insurer answered, denying liability, and filed a reconventional demand against Cook and his insurer for property damages sustained in the accident. Subsequent thereto Home Insurance Company, liability insurer for the Bellino boat and trailer, filed an intervention seeking, as subrogee, damages sustained to the boat and trailer in the collision.

Following a trial on the merits judgment was rendered in favor of (1) Joe and Betty Bellino in the sum of $100.00 (representing the deductible portion on their collision insurance policy), (2) USF & G for damages sustained to the pickup truck, and (3) Home Insurance Company for damages to the boat and trailer.

The plaintiffs-defendants in reconvention, Reliance Insurance Company and G. D. Cook, have appealed.

The substantial issue before us is whether the trial judge erred in his factual findings that the accident herein was caused by the exclusive negligence of Mr. Moore, the driver of the Cook log truck.

The facts leading up to this suit are as follows: On the above-mentioned date, at or about 10:00 A.M., the Cook log truck— being driven by Moore, was traveling east on Louisiana Highway 111. Highway 111, in this immediate area, is a narrow, two lane asphalt road. The defendant, Betty Bellino, in turn was driving the pickup truck, with boat and trailer in tow, traveling west on the same highway. Mr. Bellino was a passenger in the pickup truck. The accident took place at or near a narrow bridge, approximately 18i/¡ feet in width. The approach to the bridge from the west is relatively straight from the crest of a hill, while the east approach is downhill, through a curve to the left. At the time of the accident the road was wet because of rain which had previously fallen. The log truck completely cleared the bridge with the collision occurring on the east side thereof. The log truck turned over and logs were strewn over the highway. The tractor portion of the log unit was in the northern ditch with the trailer across the road. The bed of the pickup truck was separated from the truck chassis in the collision and the boat trailer was carried down the road with the log truck. The Bel-lino truck came t'o rest on the northern shoulder of the road with the boat nearby.

There are two diametrically opposed versions of how the accident occurred.

The plaintiff contends that the collision took place in the proper lane of travel of the Cook truck, i. e. specifically, that Mrs. Bellino invaded his lane and that as soon as he cleared the bridge he ran off of the right (south) shoulder of the highway in an attempt to avoid the collision. The driver, George Moore, stated that he was entirely in his lane of traffic prior to reaching the bridge, as well as while on the bridge, and that he did not leave his lane until after clearing the bridge and pulling on the shoulder. He further indicated that at the time of impact his right front tire was off the highway. Moore indicated that prior to impact the Bellino unit “jackknifed” and the driver was attempting to pull the truck, boat, and trailer back into the proper lane (although such action had not been completed). Moore maintained that he only made contact with the last foot or two of the rear of the boat trailer, that he did not hit the Bellino truck, and that his left front tire blew out upon impact with the trailer, thereby causing him to lose control. Moore’s testimony was generally corroborated by Arthur J. Morrison, who allegedly witnessed the accident while driving a pulpwood truck behind the plaintiff’s log truck.

The defendants, on the.other hand, gave the following account of the accident. As Mrs. Bellino rounded the curve to the east of the bridge she stated that she saw the log truck straddling the highway (over the center line) as it entered and passed the bridge and that she took evasive action by slowing down and pulling to the right (north) shoulder of the road. She denied that she was ever in the wrong lane of travel, asserts she was almost stopped, and that -her right wheels were off the shoulder upon impact (which she contends was in the middle of her lane). Mr. Bellino corroborated his wife’s testimony. Both indicated that the point of impact was with the rear of their pickup truck by the left front of the log truck.

After- hearing the testimony introduced at trial and viewing the numerous exhibits (including a large number of photographs), the trial judge concluded that the accident occurred as alleged by the Belli-nos. He dismissed the testimony of Arthur Morrison indicating that this witness’ demeanor and testimony was not impressive and that no credence would be accorded thereto. The judge found no physical evidence to indicate the specific point of impact between the respective vehicles, but did, however, find certain evidence which contradicted the version of the accident given by George Moore.

Photographs indicate the boat was struck on its very front left end, rather than the rear as contended by Moore. Other photographs show that the Bellino pickup truck was also apparently struck. The judge further found that Moore did not drive the log truck off the south shoulder of the road immediately after he cleared the bridge, but rather some 200 to 300 feet from the center part of the bridge.

After a review of the testimony and physical evidence introduced at trial, we find no manifest error in the trial judge’s factual conclusions. Further, we find no abuse of the authority granted the district judge in determining the credibility and weight to be given to the respective witnesses.

For the above and foregoing reasons the judgment of the trial court is affirmed at plaintiff-appellants’ costs.

Affirmed.

      . Cook’s claim was for alleged loss of earnings during the period of time required to repair Ms log truck, plus the deductible portion for which he was debited on Ms collision insurance payment, and Reliance seeks reimbursement under its subrogation rights for the sums expended by it for the repair of the Cook truck.


text:
    Donelson T. CAFFERY et al., Plaintiffs and Appellees, v. Thomas W. POWELL et al., Defendants and Appellants.
    No. 5149.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      Porteous R. Burke, George D. Ernest, Jr., New Iberia, for defendants-appellants.
    Michael J. McNulty, Jr., of Bauer, Dar-nall, McNulty & Boudreaux, Franklin, for plaintiffs-appellees.
    Before DOMENGEAUX, WATSON, and BEER, JJ.
   DOMENGEAUX, Judge.

This is a suit for a permanent injunction filed by plaintiffs-appellees, Donelson T. Caffery, Clegg Caffery, John M. Caffery, Jr., Lydia Caffery Hilliard, Ward Randolph Jones, John C. Jones, and Judith Jones Werner, against defendants Thomas W. Powell and Prentis Powell, residents of Iberia Parish, Louisiana, to enjoin defendants from allowing their cattle to roam upon plaintiffs’ property situated in St. Mary Parish, Louisiana.

After certain exceptions were disposed of, defendants filed an answer in the form of a general denial and in due course, after fixing for hearing on the merits, trial was held resulting in a judgment by the District Court in favor of plaintiffs and against defendants permanently enjoining, restraining, and prohibiting said defendants and their agents and employees from permitting cattle and other animals belonging to them or under their control to roam upon plaintiff’s property. The defendants were granted a period of 90 days to take whatever action necessary to comply with the District Court’s order. Defendants have suspensively appealed to this court.

Appellants allege error on the part of the District Court as follows:

1. In finding that plaintiffs were entitled to injunctive relief without a showing of irreparable injury.

2. In not giving proper weight to the harsh effect injunctive relief will have on defendants.

3. In not specifying a reasonable remedy at the least possible cost to defendants in their attempt to obey the injunctive order.

4. In not granting defendants’ motion for a new trial in order to demonstrate the hardship created by the granting of a permanent injunction.

This law suit involves Cote Blanche Island, which is actually a promontory abutting the North side of Cote Blanche Bay, which is an extension of the Gulf of Mexico. In its entirety, Cote Blanche Island encompasses approximately 1200 acres. The defendants are lessees of the major portion of Cote Blanche Island consisting of the central core and the high areas of the island. The plaintiffs are the owners and/or lessees of the low lying marshy areas surrounding the high core of said island.

It was stipulated at trial that the plaintiffs’ property which is described as follows :

“All of Fractional Section 13 lying outside of Cote Blanche Island; all of Fractional Section 12 lying outside of Cote Blanche Island; all of Fractional Section 5 lying outside of Cote Blanche Island, with the exception of the NW/4 of the NW/4; all of Fractional Section 6 lying outside of Cote Blanche Island, with the exception of the NE/4 of the NE/4; all of Section 11 lying outside of Cote Blanche Island; all of Fractional Section 14 lying outside of Cote Blanche Island; and all of that part of Sections 10 and IS expressly adjudicated to defendants, John W. Caffery and Humble Oil & Refining Company, in suit entitled Earnest R. Theriot, et al. v. John M. Caffery, et al, No. 26985 on the Docket of the Supreme Court of Louisiana, recorded in Book 4 — J of Conveyances, Page 624, of the Records of St. Mary Parish, Louisiana, all of the above described property being situated in T15S —R7E, Southwestern Land District of Louisiana, and being the same land described in Paragraph 1 of that certain Agreement dated May 31, 1938, between Humble Oil & Refining Company and John M. Caffery and recorded in Conveyance Book 5-P, Entry No. 63,615 of the Records of St. Mary Parish, Louisiana.”

is owned by the plaintiffs in the proportions of an undivided one-half fee interest and by plaintiff Donelson T. Caffery, individually, as the surface lessee of the other undivided one-half interest. It was also stipulated that the defendants are the lessees of the property otherwise above described which is generally surrounded by plaintiff’s property.

For some fifteen years or so defendants have leased the portion of Cote Blanche Island referred to herein and have cleared much of the land for pastures and fencing areas for grazing cattle. At the time of trial they had some 200 head of cattle on their leased property. The plaintiffs, for many years, owned, possessed and/or leased the property described hereinabove, which, as aforementioned, is the low lying areas around the island, and subleased the same to a trapper for trapping rights. The properties possessed by plaintiffs and defendants are surrounded by water, West Cote Blanche Bay on three sides, and the Intracoastal Canal on the Northerly side. The water surrounding the Island on three sides by West Cote Blanche Bay is subject to the ebb and flow of the tides. There is wave action and erosion caused by the winds, storms, and the tides.

The evidence shows that defendants’ cattle, at the time of trial and for some considerable period prior thereto, occupied and grazed upon plaintiffs’ premises, not only without the permission of the plaintiffs but specifically in contravention of their manifested wishes and desires.

There was testimony that the roaming and grazing of defendants’ cattle on plaintiffs’ low lying lands reduced the amount of vegetation thereon, and this denuding of their lands of grass by the cattle makes the land more vulnerable to erosion; and erosion is further caused by the hooves of the cattle cutting into the marshy area.

The plaintiffs also submitted evidence with respect to a canal which had been dug south of a docking area on the South side of the island for the purpose of drilling an oil well. The end of the canal next to the Bay had been left closed to the Bay, preventing the water from the Bay from flowing in and out of this canal. Defendants’ cattle by continuous trafficking caused this closure to open up. The plaintiffs also submitted evidence that the grazing of the defendants’ cattle on their low lying lands damages the land for trapping purposes.

The keystone of defendants’ position, as shown in their first specification of error, is based on the general proposition that an injunction should not issue unless irreparable injury can be shown. The trial judge did not reach the question of whether the plaintiffs have shown irreparable injury, although he recognized that there was considerable evidence introduced by the plaintiffs to the effect that the action of defendants’ cattle through denuding the low lying areas of grass, and through the trampling and cutting of plaintiffs’ property by the hooves of defendants’ cattle, resulted in erosion by action of the water. Instead, the trial judge granted the injunction on the basis that irreparable injury need not be shown in a situation when the action sought to be enjoined is one “reprobated by law”.

Plaintiffs, without objection, filed into evidence as Exhibit No. 2 a certified copy of Ordinance 321 of the St. Mary Parish Police Jury, adopted May 31, 1934, and amended March 11, 1970, which ordinance prohibits the roaming at large of certain animals, including cattle — “upon the public roads or any other place within the Parish of St. Mary”, (emphasis supplied). The ordinance further provides for fine and/or imprisonment for its violation, and sets out methods of enforcement thereof. In view of the evidence adduced, it is apparent, as concluded by the trial judge that the actions of the defendants in allowing the cattle to roam on the properties of plaintiffs is a course of action reprobated by law, i. e. in violation of the referred to ordinance.

In such a situation our jurisprudence does not require that a plaintiff in an action such as this prove irreparable injury. If a plaintiff can show that a defendant’s conduct is forbidden by law, as was shown herein, then plaintiff is entitled to an injunction restraining the illegal acts of a defendant. Whalen v. Brinkmann, 258 So.2d 145 (La.App. 1st Cir. 1972); Zbozen v. Department of Highways, 293 So.2d 901 (La.App. 1st Cir. 1974).

Although we agree that the trial judge was correct in issuing the injunction on the legal basis aforementioned, we also opine that, over and above and in addition thereto, the plaintiffs were entitled to in-junctive relief under the provisions of C. C.P. Article 3601 as having proven irreparable injury.

“Irreparable injury justifying an injunction is that which can not be adequately compensated in damages, or for which damages can not be compensable in money, . . . ” and, an injunction “ . . . should issue only where the party seeking same is threatened with irreparable loss or injury without adequate remedy at law . . . ” Greenberg v. De Salvo, 254 La. 1019, 229 So.2d 83 (1969).

It was proven that there was a continuous roaming and trespassing of defendants’ cattle on plaintiffs’ property at the time of trial and for a number of years prior thereto. This continuous roaming and trespassing coupled with the consequent effect these activities had upon the property by erosion are acts which can be enjoined because they constitute injuries for which an equally adequate remedy is not available on the law side of the court, and for which plaintiffs can not be compensated adequately in damages, or for which damages can be measured by pecuni-nary standards. This case is one wherein injunctive relief is the only effective remedy. To paraphrase the second concurring opinion in Indian Bayou Hunting Club, Inc. v. Taylor, infra, in this case the relative inadequacy of any relief other than an injunction is indisputable. Any other judgment would not only approach uselessness but would be violative of the laudable principle of judicial economy, as it would require plaintiffs to return to court for a trial on the merits each time that the defendants’ cattle roamed or trespassed upon plaintiffs’ property. See Indian Bayou Hunting Club, Inc. v. Taylor, 261 So.2d 669 (La.App. 3rd Cir. 1972) ; Caney Hunting Club, Inc. v. Tolbert, 294 So.2d 894 (La.App. 2nd Cir. 1974). See also Yiannopolulos, Work of Appellate Courts, 1971—72, 33 La.Law Review 197, 198.

Concerning appellants’ specification of error No. 2, they testified, and it is readily apparent, that in order to prevent their cattle from roaming onto the property of plaintiffs it would be necessary to build extensive fencing at a considerable cost. They contend that the District Court failed to give sufficient weight to the alleged harsh economic burden which the injunction would place upon them. The District Court recognized the “tremendous” costs of building a fence around their property, but concluded, and correctly so we believe, that the affirmative right of the plaintiffs to the undisturbed possession of their property outweighed the alleged cost factor involving the defendants. We cannot say, considering the circumstances of this case and the legal precepts involved, that the prohibition by the court of the use of the land of another without consent is harsh.

Defendants’ third specification of error is to the effect that the District Court did not specify a reasonable remedy “at the least possible cost to defendants in their attempt to obey the injunctive order.” We find no authority, nor have we been advised of or referred to any, for the proposition that it is the duty of a court to specify a remedy for one properly enjoined from doing a certain act.

In applying for a new trial appellants, in effect, reiterated issues which were thoroughly considered by the District Court at the hearing on the merits, and suggest in their specification of error No. 4 that a new trial should have been granted in order to demonstrate the hardship created by the granting of the injunction. In denying the new trial the trial judge made it clear that the application therefor did not set forth any matters which were not considered in the Court’s original opinion and judgment. We find no error in the trial court’s denial. Louisiana Code of Civil Procedure Arts. 1971-1979.

For the above and foregoing reasons the judgment of the District Court is affirmed at appellants’ costs.

Affirmed.

      . There was no application for a temporary restraining order or preliminary injunction.

      . The 1934 ordinance excluded incorporated municipalities from its provisions, and the 1970 amendment further excluded Avoca Island therefrom. Cote Blanche Island is not within an incorporated municipality, neither is it included as any part of Avoca Island.

      . Between $8,000 and $9,000.


author: BEER, Judge.

text:
    Harrison PRINCE, Sr., et ux., Plaintiff-Appellee, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
    No. 5143.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      Camp, Carmouche, Palmer, Carwile & Barsh by James E. Williams, Lake Charles, for defendant-appellant.
    Nathan A. Cormie and Assoc, by Ronald J. Bertrand, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and BEER, JJ.
   BEER, Judge.

A jury trial on February 12 and 13, 1975 in the Fourteenth Judicial District Court for the Parish of Calcasieu resulted in a verdict for plaintiffs Barbara Prince and her husband Harrison Prince, Sr. in the amount of $7,500.00 for personal injuries occasioned to Mrs. Prince and special damages in the amount of $2,000.00 incurred by Mr. Prince as a result of an automobile accident which occurred in Lake Charles at about 10:30 p. m. on August 14, 1974.

Defendant, Travelers Insurance Company appeals specifying that the jury failed to give the proper weight to the testimony of various witnesses; made an excessive award; and that the trial court erred in permitting the investigating police officer to testify as to his opinions and conclusions notwithstanding defense counsel’s objections when that testimony was dispositive of the ultimate issue of liability.

We conclude that the first two contentions are without merit since the jury was properly instructed on the issues of credibility, weight and sufficiency of evidence and quantum and will focus our attention on the final specification which was well briefed and well argued by able counsel for both parties.

On the evening of the accident Mrs. Prince was driving her 1970 Volkswagen east on Broad Street. Near the intersection of Broad and Eighth Avenue defendant’s insured Robert J. Chamberlain was driving a pickup truck owned by his then employer, Cajun Power Erectors in the same direction but ahead of Mrs. Prince. He made a “wide” right turn • into the parking lot adjacent to Phil’s Lounge, his intended destination. Mrs. Prince, suddenly confronted by the “wide” right-turning pickup truck crossing her lane of traffic couldn’t stop in time, reached for her baby who was the only passenger in her car and struck the pickup truck just about in the middle of its right side with the left front portion of her Volkswagen.

When Lake Charles Police Officer Allen J. Hebert got to the scene to investigate the accident, the vehicles were still in the collision position. Chamberlain, his passenger Jerome W. Guidry, and Mrs. Prince, were, apparently, the only witnesses. Clearly then, the police officer’s testimony was important to the jury, even though he was not an eye witness to the collision, since his description of the location of the vehicles, the presence of debris, the extent of the apparent damage, the damage location on the vehicles, etc. would be persuasive as to the mechanics of the accident itself. Testimony was properly elicited from Officer Hebert on these factual issues. Also, he was instructed by the trial judge to testify “. . . only of those things that you have personal knowledge of, not conclusions or opinions you might have.”

But, in spite of this the following exchange did take place in the course of Officer Hebert’s testimony:

By plaintiffs counsel:
“Q: Now, Officer, Mr. Williams had asked you your opinion as to certain factors here. Let me ask you this: From the physical factors as you found them at the scene, is the position and angle with which the pickup truck struck, that being at a pushing forward at — just in front of the back wheel toward the cab —the area where you feel the vehicles come together ?
A: Yes, sir.
Q: And at that point would the pickup truck have been crossing the proper lane of the Volkswagen?
MR. WILLIAMS: Objection, Your Honor. That’s strictly a hypothetical question. He’s asking .
THE COURT: Your objection is overruled.
Q: Alright, sir. I’ll rephrase that.
A: Okay.
Q: At the point from the physical factors you concluded the vehicles come together, and at the angle and position shown, would the pickup truck have been crossing the lane of the Volkswagen at the time they first touched?
MR. WILLIAMS: Your Honor, I’m going to object. I think that’s calling for an opinion on his part, he’s not qualified as an expert. He’s not offered as an expert. There’s been no foundation laid for him to venture an opinion of this nature. He can testify as to the physical evidence he found out there.
THE COURT: The objection is overruled.
Q: Over the two objections now would you answer the question, please, sir?
A: Yes, sir. The way that — the way I feel is that the way of the physical damage was, the damage to vehicle No. 2, that he was in a turning motion when he was struck by vehicle No. 1, which would be the Prince vehicle.
Q: And when he was in a turning motion what lane of traffic would he have been in considering the position of the Prince vehicle ?
A: He could have been partially in the inside lane of traffic to make his turn.
Q: That is, are you saying this — I see this line is angled up (Counsel indicates on diagram.)
A: Yeah.
Q: Are you saying this: That he might have been partially within this . . . (Indicating.)
A: Yes, sir, he might have been partially in that lane.”

Officer Hebert was not an expert witness and the questions put to him in this exchange were improper. (See Baker v. D. H. Holmes Company, Ltd., 285 So.2d 282 at p. 286 (La.App. 4th Cir. 1973).

However, our attention is called to another exchange which took place in the course of Officer Hebert’s testimony.

By defendant's counsel:

“Q: Were you able to tell from the physical evidence out there, based on your experience investigating these accidents, what the approximate speed, either from the physical evidence on and/or from talking to the witnesses, what the physical speed of the Chamberlain pickup truck was ?
A: I do not recall. It wasn’t very fast. It was 15 or 20 miles an hour at the most.”

Thus, the question is raised as to whether defense counsel’s line of questioning put to this witness acts as a waiver of an es-toppel to his overruled objections.

We need not answer that interesting question in this case for we conclude that the record fully supports the jury verdict and the improper questions put to Officer Hebert and answered by him do not constitute reversible error under the circumstances.

In Naquin v. Maryland Casualty Company, 311 So.2d 48, this court enumerated the following principles:

“When a review of the record indicates the trial court judgment is correct and that justice has been done, the judgment will not be overturned because of errors which did not affect the merits. LSA-C.C.P. 2165; Shows v. Williamson, 256 So.2d 688 (La.App. 2 Cir. 1972). When error is detected, it must be weighed to determine whether such error is harmless or prejudicial. Lauro v. Travelers Insurance Company, 261 So.2d 261 (La.App. 4 Cir. 1972). When there is evidence before the trier of fact which, upon reasonable evaluation, furnishes a factual basis for the trial court’s finding, the appellate court, on review, should not disturb this factual finding absent manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).”

In the application of these principles to this case, the question becomes whether or not the evidence is sufficient to support the jury’s verdict notwithstanding the presence of the error in the record. The discussion then develops into sub parts; first, if there is evidence at all to support the essential elements of plaintiff’s case; second, in those instances where there was conflicting evidence on essential elements, whether or not the jury’s resolution of such conflicts was accomplished fairly and reasonably, and; third, if we are in a position to make a reasonable evaluation of conflicting testimony so as to resolve conflicts having disregarded inadmissible evidence, and, thus, avoided the error.

We believe the uncontroverted physical evidence clearly supports the plaintiffs’ version of the accident. But, even more persuasive is the testimony of defendant’s insured and his passenger, Guidry. Chamberlain admits that he “yielded over to the left” before making the right turn and Guidry acknowledges that Chamberlain made “ . . .a wide right turn. ...”

These admissions coupled with the position of the vehicles, the location of the damage from the impact, and the site of the debris leave little doubt as to the mechanics of this collision, without the need of giving any consideration to Hebert’s inadmissible opinion testimony.

The judgment is affirmed at appellant’s cost.

Affirmed.

      . “Wide” as used in this context denoting a swing (of some degree) to the left before execution to the right.


author: WATSON, Judge.

text:
    BUNGE CORPORATION, Plaintiff-Appellant, v. Hudson EMMONS, Defendant-Appellee.
    No. 5142.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellant.
    Jack D. Barnett, Shreveport, for defendant-appellee.
    Before DOMENGEAUX, WATSON and BEER, JJ.
   WATSON, Judge.

This is a proceeding for a money judgment brought by plaintiff, Bunge Corporation, against the defendant, Hudson Em-mons, but the merits are not involved in the appeal.

The appeal is from a judgment which ordered that an earlier default judgment be annulled and set aside and that defendant proceed to file his answer; essentially, it is an appeal from an order which granted a new trial.

We notice on oür own motion that the appeal must be dismissed since a judgment, pursuant to a timely filed application, ordering a new trial is not final and does not cause irreparable injury; it is not, therefore, appealable. LSA-C.C.P. art. 2083; Foster v. Kaplan Rice Mill, 203 La. 245, 13 So.2d 850 (1943).

It is required under the jurisprudence that the motion for new trial be timely filed. The sequence of pertinent events .as reflected by the record were as follows:

The delay for applying for a new trial is seven days, exclusive of legal holidays. LSA-C.C.P. art. 1974. Since defendant was not served personally, it was required that a notice of judgment be served on him. LSA-C.C.P. art. 1913. When notice of judgment is required, the seven days delay does not begin to run until the day after service of the notice. LSA-C.C.P. art. 1974.

The date notice was served, February 28, 1975, was a Friday, and, accordingly, the delay began to run on Monday, March 3, 1975. Counting seven days thereafter, excluding Saturday, March 8, 1975, and Sunday, March 9, 1975, the last day to file a motion for a new trial was March 11, 1975, the date upon which the motion was actually filed by defendant.

Therefore, the motion was filed timely.

Although the appeal is to be dismissed, we will note and comment on an error assigned by plaintiff. Complaint is made that there was no service of the pleading which urged a new trial. The record does .not reflect service.

However, the lack of service does not invalidate the filing! Finuf v. Johnson, 216 So.2d 151 (La.App. 2 Cir. 1968) ; writ refused 253 La. 313, 217 So.2d 410. The minutes of court for April 14, 1975, indicate that the motion was heard that date and both counsel for plaintiff and counsel for defendant were present in court. The record reflects no objection to the proceeding due to lack of service. Appearance waives objections which might have been urged to service. LSA-C.C.P. art. 925. Succession of Penny, 11 La. Ann. 197 (1856). When the matter was taken up in the trial court without objection, lack of service became moot. Therefore, we find no merit to the assignment of error regarding lack of service.

For the reasons assigned, the appeal is dismissed and we remand the case to the trial court for further proceedings. All costs in connection with the appeal are taxed against plaintiff-appellant.

Remanded.


text:
    EVANGELINE FARMERS’ CO-OP, INC., Plaintiff-Appellee, v. Thomas K. SMITH, Defendant-Appellant.
    No. 5147.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Donald Soileau, Mamou, for defendant-appellant.
    J. Jake Fontenot, Mamou, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and BEER, JJ.
   WATSON, Judge.

Plaintiff, Evangeline Farmers’ Co-Op, Inc., filed suit against the alleged owners and trainer of two race horses to collect a feed bill and to sequester the horses. The alleged owners, Thomas K. Smith and W. A. (Bill) Darling, and the trainer, Ronald Briley, defendants, filed reconventional demands for damages, loss of revenues and attorney’s fees allegedly resulting from the seizure of the horses under the Writ of Sequestration. The trial court dismissed the original suit on the plaintiff Co-Op’s motion after payment of the accounts. Judgment on the reconventional demands was given in favor of the Co-Op.

There is some confusion in the record as to whether the reconventional demand was decided on a motion for summary judgment or on the merits. However, no mention of summary judgment is made by either party on appeal; there is testimony in the record; and the trial court’s reasons treat the matter as a decision on the merits. We will consider the appeal as on the merits.

Only Thomas K. Smith, plaintiff-in-re-convention, has appealed from the judgment of the trial court, contending that the trial court erred in not finding the seizure under the Writ of Sequestration to be unlawful and in not awarding him damages.

Appellant Smith assigns several errors in the trial court’s rejection of his claims.

We do not reach these issues, however, for the reason that the record does not indicate that Smith owned the horses at the time of seizure. The trainer, Briley, testified that the horses, Easy Rogé and Bee’s Jet Deck, belonged to Bill Darling, who is not appealing. (TR. 231). Smith did not even testify.

Only Smith appealed and while the record is not entirely clear as to ownership, it is incumbent on Smith in his claim for damages for wrongful seizure to show some basis for his claim:

“Having come to the conclusion that defendant was not the owner of the boat, we must necessarily conclude that he is not entitled to recover any damages which he claims were caused him by the issuance of the writs of sequestration.” Dempster v. Warner, 194 So. 127 at 130 (La.App. 1 Cir. 1940), writ refused.

Since defendant and plaintiff-in-reconvention here has failed to prove damages to him as owner of the seized property, his claim for wrongful seizure must fail. He has asserted no other interest in the horses which would entitle him to damages for wrongful seizure.

Accordingly, the judgment of the trial court rejecting Smith’s demands is affirmed at his costs.

Affirmed.


author: HALL, Judge.

text:
    AMERICAN SIGN AND INDICATOR CORPORATION, Plaintiff-Appellant, v. CITY OF LAKE CHARLES, Louisiana, Defendant-Appellee.
    No. 5140.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    John Sheldon Toomer, Lake Charles, for plaintiff-appellant.
    Peter A. Ciambotti, Lake Charles, for defendant-appellee.
    Before HOOD, DOMENGEAUX and HALL, JJ.
   HALL, Judge.

Plaintiff, American Sign & Indicator Corporation, sued defendant, City of Lake Charles, seeking recovery of the sum of $3,849.61 allegedly owed by defendant for State, School Board and City sales taxes arising out of the performance of a contract for the construction by plaintiff of a large sign on defendant’s Civic Center property. The City answered denying liability for payment of any sales taxes and reconvened against plaintiff for recovery of $769.92 in sales tax allegedly owed the City by plaintiff arising out of the same construction project.

After trial the district court, pursuant to well-reasoned written reasons for judgment, rendered judgment rejecting plaintiff’s demands against the City and granting the City judgment for $379.82 against plaintiff. We affirm the decision of the district court.

The facts are disclosed by documents offered into evidence and by a stipulation between the parties.

On July 10, 1972, pursuant to public bids, plaintiff entered into a building or construction contract with the City whereby plaintiff agreed to provide and furnish all materials, equipment and labor to perform all work required to build, construct and complete a large, illuminated sign on the Civic Center property owned by the City in accordance with certain plans and specifications for a contract price of $76,992.16. The contract contains no provisions concerning sales taxes.

Construction was completed and the contract price was paid on June 7, 1973.

It is stipulated that of the contract price of $76,992.16, the sum of $39,010.25 is allocated to labor cost and to items on which all sales or use taxes have been paid, leaving a taxable amount of $37,981.91 on which sales taxes, if any are owed, should be computed. The amounts of taxes due, if any, are $1,139.46 state, $379.82 school board and $379.82 city.

It is further stipulated, and copies of the ordinances filed in evidence reflect, that the pertinent provisions of the local ordinances are the same as those of the state statute, LSA-R.S. 47:301 et seq., except as to the tax rate, the state being 3% and the local rates each being 1%.

It is further stipulated, and it is clear under the law, that the Civic Center sign constructed pursuant to the contract is immovable property and is not movable property. Industrial Outdoor Displays v. Reuter, 162 So.2d 160 (La.App. 4th Cir. 1964), writ refused, 246 La. 348, 164 So.2d 352; LSA-C.C. Arts. 464, 467, 468.

LSA-R.S. 47:302, and the two local ordinances, levy a tax “upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption ... of each item of or article of tangible personal property, as defined herein .. . .”

LSA-R.S. 47:301(16), and the two local ordinances, define “tangible personal property” as follows:

“ ‘Tangible personal property’ means and includes personal property which may be seen, weighed, measured, felt or touched, or is in any other manner perceptible to the senses. The term ‘tangible personal property’ shall not include stocks, bonds, notes, or other obligations or securities.”

The district court correctly held that the City, as owner under a contract for the construction of immovable property, is not liable for taxes imposed on the sale or use of tangible personal property, but that plaintiff, as contractor, is liable for taxes imposed on the materials used and consumed by it and incorporated in the immovable structure, to the extent that taxes have not previously been paid. The district court cited St. John the Baptist Parish School Board v. Marbury-Pattillo Construction Company, Inc., 259 La. 1133, 254 So.2d 607 (1971), which is closely in point and controls the decision in the instant case.

In that case, a parish school board sought to collect a sales and use tax from both parties (owner and contractor) to a contract for the erection of a terminal grain elevator, dock structure and related facilities. In holding that the contractor was liable for the tax but the owner was not, the Supreme Court stated:

“The definition of ‘tangible personal property’ in the ordinance corresponds with the definition of corporeal movables in the Civil Code. C.C. arts. 460, 473, 475. The port commission’s contract was not for the purchase of movables, but for the construction of immovables. C.C. arts. 464, 467, 468. No provisions of the ordinance taxing the owner of land who contracts for the erection of structures thereon have been brought to our attention, and we have been able to discover none. Considering the ordinance as a whole, it is apparent that it was contemplated that the sales tax apply only to movables, not immovables.”

The holding in the Marbury-Pattillo case is consistent with the earlier cases of Claiborne Sales Company, Inc. v. Collector of Revenue, 233 La. 1061, 99 So.2d 345 (1957) and State v. J. Watts Kearney & Sons, 181 La. 554, 160 So. 77 (1934). See also 33 La.L.Rev., 289, 292.

Plaintiff-appellant urges the Marbury-Pattillo case is distinguishable because in that case the contract specifically provided for taxes to be paid by the contractor whereas there is no such provision in the contract between plaintiff and the City in the instant case. The distinction between the contracts in the two cases is correct, but the decision of the Supreme Court did not rest on the contractual provisions, but specifically was grounded on its holding that sales tax is levied on the sale and use of tangible personal property, not immovable property.

Plaintiff-appellant further contends that the sales tax statute, and ordinances, require the tax to be collected by the dealer from the purchaser or consumer (LSA-R. S. 47:304), that the City is such a purchaser or consumer in this instance, and that the City’s liability for taxes under the statute is in addition to its liability for the contract price. This contention falls under the holding that sales tax is not levied on the sale or use of immovable property. The City is not a “purchaser or consumer” of tangible personal property and is not liable.

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

Affirmed.


text:
    Darlene BROUSSARD, Plaintiff-Appellee, v. Dennis R. BROUSSARD, Defendant-Appellant.
    No. 5032.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.

      McLeod & Dow by William L. McLeod, Jr., Lake Charles, for defendant-appellant.
    Raleigh Newman, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and MORRIS, JJ.
   WATSON, Judge.

Plaintiff, Darlene Smith Broussard, filed this suit to obtain a legal separation from defendant, Dennis R. Broussard, on the ground of cruel treatment. She also sought custody of the two minor children born of the marriage, Debra Lynn Brous-sard, age 12, and Stacy Dawn Broussard, age 10. Defendant reconvened for divorce on the ground of adultery, and, in the alternative, for a legal separation on the ground of abandonment.

The trial court granted plaintiff a legal separation; awarded her the custody of the two minor children; fixed alimony at $125 per month and child support at $100 per month per child. The reconventional demand of defendant was dismissed.

Defendant, Dennis R. Broussard, has appealed from the adverse judgment of the trial court, contending that:

(1) the trial court violated the provisions of the 1974 Louisiana Constitution which prohibits discrimination because of sex by granting a preference to the mother in awarding custody of the minor children; and

(2) the trial court erred in the above dispositions.

The issues presented are:

(1) whether the trial court discriminated against Mr. Broussard in a constitutionally prohibited manner; and

(2) whether the trial court erred in awarding a separation, alimony, child support and custody to Mrs. Broussard.

The 1974 Louisiana Constitution provides in Article 1, Section 3, that:

“No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations.”

The trial court stated in oral reasons for judgment that:

“The Court favors the awarding of the children to the mother if she is morally fit.” (TR. 390)

The preference expressed by the trial court in favor of a mother’s custody of minor children is not unreasonable, capricious or arbitrary. The preference is based on the simple fact that the day-to-day care of minor children has traditionally, in our society, been in the hands of the mother rather than the father. In addition, there is an obvious biological connexity between mother and child in that the mother carries the child during gestation, gives birth to it, and suckles it (in some cases) during infancy. A relationship is created which gives, in our opinion, a biological basis for the historic legal preference given the mother in questions of custody.

Moreover, the award of custody here follows the rule established by Article 157 of the Louisiana Civil Code, in pertinent part as follows:

“Art. 157.A. In all cases of separation and of divorce the children shall be placed under the care of the party who shall have obtained the separation or divorce unless the judge shall, for the greater advantage of the children, order that some or all of them shall be entrusted to the care of the other party.”

The other issues raised by appellant are all factual and present the question of manifest error in the trial court’s conclusions. It is axiomatic that the trial court has great discretion in awarding custody and fixing alimony and child support. A judgment of separation or divorce should be affirmed if there is evidence in the record to support it and no clear abuse of discretion. McVay v. McVay, 276 So.2d 926 (La.App. 3 Cir. 1973); La Tour v. Fuselier, 228 So.2d 336 (La.App. 3 Cir. 1969).

The appellant’s most vigorous argument is that adultery by Darlene was proved, contrary to the trial court’s conclusion.

The familiar rule of law is that, while circumstantial evidence may be used to prove adultery, direct evidence rarely being available, it must be so convincing as to exclude any other reasonable hpothesis. Pilgrim v. Pilgrim, 235 La. 112, 102 So.2d 864 (1958).

Without detailing the testimony of each witness, we will note that the appellant relies principally on circumstantial evidence to attempt to show that his wife was alone with one Waltrip at various times and places. Appellant relied chiefly on his own testimony, that of his brother-in-law, and that of private investigators. Also emphasized by appellant is the testimony of the 10-year-old daughter, Stacy. The trial court saw and heard this child, as well as the other witnesses; great weight must be accorded factual conclusions drawn by the trial court. The trial court was not convinced that adultery was proved, and, after reviewing the record, we agree. We find no manifest error in the rejection of appellant’s claim of adultery.

On the other hand, there is ample evidence on which the trial court granted a separation to appellee on the basis of cruel treatment.

The award of alimony and child support, totaling $325 per month, is not excessive in our view for a man whose gross income in 1974 was $15,292.69, as reflected by the record. .There was no abuse of discretion by the trial court in making these allowances.

On the issue of custody, appellant submitted the testimony of Dr. G. R. Morin, a Lake Charles psychiatrist, who indicated that he would recommend placing Debbie, the 12-year-old, with her father. While the opinion of a reputable psychiatrist, such as Dr. Morin, is very persuasive, courts cannot abdicate their decision-making responsibilities in favor of the medical profession but must consider all factors present in the case. Here, the trial court apparently balanced the psychiatrist’s opinion against the age and sex of the child (a 12-year-old girl entering adolescence), the law’s reluctance to split siblings, the impression created in court by the contending parties and all the other factors which enter into a custody decision. The trial court then concluded that it was in the best interest of the child to place her with the mother. Wood v. Beard, 290 So.2d 675 (La.1974); Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). We cannot say there was error.

Therefore, we affirm the judgment of the trial court, appellant to pay all costs.

Affirmed.


author: GULOTTA, Judge. LEMMON, Judge

text:
    QUICK FINANCE SERVICE, INC. v. Johnny L. YOUNGBLOOD.
    No. 6951.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.

      Fred P. Westenberger, Edward F. Weg-mann, New Orleans, for plaintiff-appellee, Marine Specialty Mill and Supply Co., Inc.
    Robert F. Fleming, Jr., Alcide J. Wey-sham, in pro per, New Orleans, for defendant-appellant, Alcide J. Weysham.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

This is an appeal from a judgment rendered against an attorney for reimbursement of the amount of a judgment awarded against the attorney’s client because of the attorney’s alleged neglect. This suit is brought by a judgment debtor’s employer, Marine Specialty and Mill Supply Company, Inc., alleging that the attorney failed to timely answer garnishment interrogatories propounded to the employer, resulting in a judgment pro confesso being entered against the garnishee employer for the full amount owed by the defendant debtor.

Plaintiff bases its cause of action on LSA-R.S. 37:217 which reads as follows:

“If a nonsuit is entered, owing to the absence or neglect of the attorney without a reasonable excuse, the costs shall be paid by the attorney and he shall be liable to pay all the damages which his client suffers by being nonsuited or by any other neglect of the attorney, recoverable in a summary way, on motion after giving the accused notice.”

Defendant contends that plaintiff’s action has prescribed. The thrust of defendant’s appeal is that a malpractice suit filed against an attorney sounds in tort. Accordingly, since more than one year has expired from July 25, 1969 (the date the judgment was rendered against Marine) until June 12, 1973 (the date the suit was filed by Marine against the attorney), plaintiff’s action under LSA-R.S. 37:217 was not timely filed. Secondly, defendant contends he was not employed to represent the employer garnishee in the garnishment proceedings.

We are initially confronted with a procedural determination which makes it unnecessary to consider defendant’s contentions on appeal relating to prescription and employment. Marine pursued summary process, as provided for in LSA-R.S. 37:217 in asserting its demand against the attorney. However, our interpretation of the statute is that summary process is available only in the instance where a non-suit has been entered.

A nonsuit is defined in the Code of Civil Procedure as follows:

“Art. 1671. Voluntary dismissal
“A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to a general appearance by the defendant. If the application is made after a general appearance, the court may refuse to grant the judgment of dismissal except with prejudice.”
“Art. 1672. Involuntary dismissal
“A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case the court shall determine whether the judgment of dismissal shall be with or without prejudice.”

In the instant case a judgment was rendered against plaintiff. Marine’s claim is not for damages resulting from a nonsuit dismissal because of defendant’s negligence.

Our conclusion that LSA-R.S. 37:217 is restricted to a nonsuit situation is buttressed by our failure to find in our research any case where summary process was used to assert a claim based on legal malpractice. Furthermore, in the cross reference under LSA-R.S. 37:217 referral is made to LSA-C.C.P. art. 1672. Official revision comment (e) of LSA-C.C.P. art. 1672 states:

“R.S. 37:217, which deals with the liability of an attorney when a nonsuit is entered owing to his neglect, is retained in the Revised Statutes.” (Emphasis ours)

We reject plaintiff’s contention that the phrase “or by any other neglect of the attorney,” as found in LSA-R.S. 37:217, permits the use of summary process in instances other than when a nonsuit has been entered. All parts of a statute must be read together. Each provision must be considered in context with other provisions and should be construed in harmony with the whole. Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336 (1962). LSA-R.S. 37:217 begins with the phrase “If a nonsuit is entered . . . ” This suggests that a prerequisite to the use of summary process is a nonsuit dismissal.

Having found that LSA-R.S. 37:217 is limited to use when a nonsuit has been entered, we conclude plaintiff, in the instant case, cannot assert its demand against defendant by use of summary process. Plaintiff’s suit must be pursued by ordinary process of petition and answer.

Accordingly, the judgment against defendant is vacated, annulled and set aside.

Vacated, annulled and set aside.

LEMMON, J., concurs and will assign reasons.

LEMMON, Judge

(concurring).

This appeal followed a judgment on rule filed by a garnishee against the attorney who allegedly failed to answer garnishment interrogatories as he was employed to do. The attorney (defendant-in-rule) filed peremptory exceptions of prescription, no cause of action and no right of action. With the pleadings in this posture the trial court proceeded to try the rule and rendered judgment in favor of the garnishee for the amount paid to the garnishing creditor.

The garnishee’s rule alleged malpractice by the attorney, which is a cause of action properly asserted in an ordinary proceeding. R.S. 37:217, which authorizes the use of summary proceedings by a client against his attorney under certain circumstances, is not applicable under the facts of this particular case, for the reasons stated in the majority opinion. Therefore, if the attorney had objected to the unauthorized use of summary proceeding by filing a dilitory exception (C.C.P. art. 926), he would have been entitled to judgment sustaining the exception (C.C.P. art. 933).

However, since the attorney entered upon the trial without excepting to the summary proceeding, he waived any objection to the unauthorized use of such procedure. C.C.P. arts. 926 and 2593. See also comments (d) and (e) following C.C.P. art. 2593. Accordingly, we should affirm the trial court’s judgment if the evidence is sufficient to support that judgment.

An examination of the record shows that the case was submitted on briefs. The brief filed by the garnishee stated that the record in the garnishment proceeding proved that the attorney had acted on behalf of the garnishee, and counsel for the garnishee argued solely the issue of prescription.

The brief filed on behalf of the attorney argued that he had represented the debtor-employee but had never at any time been employed by the garnishee to answer the interrogatories or to perform any other services. (Although the brief recited events which may have reasonably led the garnishee to believe the attorney would answer the interrogatories, there was no evidence presented to establish the occurrence of these events.) The attorney’s brief then discussed the issue of prescription.

Technically, the record does not contain evidence sufficient to support a judgment in favor of the garnishee (regardless of the issue or prescription). However, both parties were concerned principally with the prescription issue, and since the majority has directed that the case be remanded, I agree that substantial justice would be accomplished by allowing both parties an opportunity to present evidence on the issue of employment. I therefore concur in the remand.

      . See Giuffria v. St. Paul Fire and Marine Insurance Co., 293 So.2d 518 (La.App., 4th Cir. 1974) ; Cannon v. Baron, 289 So.2d 835 (La.App., 4th Cir. 1974) ; Watkins v. Sheppard, 278 So.2d 890 (La.App., 1st Cir. 1973).

      . The attorney’s complaints on appeal that he was deprived of the opportunity for discovery and of the right to a jury trial come too late since he waived the benefits of ordinary proceedings by going to trial on the rule without objecting to the summary procedure.

      . The trial judge refers to a hearing in his reasons for judgment, but the record contains no testimony and the minute entry on the hearing date shows that the matter was submitted on memoranda.

      .After the judgment pro confesso was rendered, the attorney did undertake to represent the garnishee in an unsuccessful suit to annul that judgment. See La.App., 243 So.2d 321. This fact, however, does not prove that the garnishee employed the attorney to answer the garnishment interrogatories originally.


author: REDMANN, Judge.

text:
    Dobin FRIEDMAN v. Donald E. OLIVER Mrs. Donnell Dodd, wife of/and Joseph D. CRAFT, Jr. v. Donald E. OLIVER.
    Nos. 6960, 6961.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.

      Arthur C. Reuter, Reuter & Reuter, New Orleans, for plaintiffs-appellees.
    Emile L. Turner, Jr., Thomas M. Young, New Orleans, for defendant-appellant.
    Before REDMANN, BOUTALL and MORIAL, JJ.
   REDMANN, Judge.

Defendant contracted to buy plaintiffs Crafts’ home, with necessary documents to be prepared by plaintiff Friedman (whom defendant also employed to examine title to the property). From judgments for the Crafts for the forfeit of a deposit (represented by a note) because of nonperformance by defendant, and for Friedman for legal and notarial fees, defendant appeals.

The issues include whether the written buy-sell contract was subject to an unwritten suspensive condition (the payment to defendant of a salary bonus by his employer) which remained unfulfilled, and whether lawyer-notary Friedman may recover for services performed after he learned that defendant had advised Craft that defendant would not purchase.

We affirm the judgment for the Crafts and reverse that for Friedman.

The buy-sell contract, specifying that the act of sale was to occur by November 1, 1973, and secured by a 10% deposit note (against which $500 was concomitantly paid), was drafted on a printed form in Friedman’s office on September 14, 1973. On September 24, defendant advised Craft that (because, defendant had learned, the anticipated bonus would not be paid) he could not pay the cash portion of the price and therefore could not perform. On September 26, Craft listed the house for sale with a real estate agent, and the agent placed on the property “for sale” signs (which defendant saw, since his own home was just across the street).

At this point the facts become unclear. Defendant understood the September 26 “for sale” signs as conclusive confirmation of his understanding on September 24 that Craft was to “go down and talk to Mr. Dobin Friedman the next day and release me.” But Craft testified that rescission was not agreed to September 24, although defendant did then inform him of his inability to meet the cash requirement and “said to forget about the $500” which defendant had given Craft September 14 to apply against the deposit note. Neither Craft nor defendant made any further effort to speak with the other. Defendant never inquired whether Craft had arranged the matter with Friedman, and Craft never explained to defendant that, despite defendant’s expressed inability to perform and Craft’s placing the property for sale through an agent, Craft was holding defendant to the contract.

However, on October 11 Friedman wrote defendant a title opinion letter, advising that necessary certificates and survey “will be ordered,” and requesting the setting of a convenient time for the act of sale. On October 18 Friedman again wrote Craft, this time by registered mail, fixing the act of sale for 10 a. m. November 1. On November 1, when defendant did not appear to take title, Friedman and the Crafts executed a notarial act reciting the tender of title at the appointed hour. The following day Friedman and the Crafts filed these suits.

The Crafts’ Claim,

The Crafts must prevail in their suit on the note given as a deposit on the buy-sell contract, unless defendant proves that the buy-sell contract was either rescinded or, by failure of the alleged but unwritten condition of the bonus, became ineffective. The burden of proof is defendant’s.

Defendant’s testimony of the alleged agreement to rescind was not very positive. Craft’s testimony to the contrary is sufficient support for the trial court’s rejection of rescission.

Similarly, the testimony of both Craft and Friedman was sufficient to support the trial court’s conclusion that defendant’s receipt of a bonus was not an agreed condition of his obligation to buy the house. This case is unlike Guichard v. Greenup, La.App.1972, 259 So.2d 93, in which the provision of a 514% loan was an express and written condition (and only the cause of that condition’s not being met was uncontemplated by the parties); in our case the ability to pay $20,000 cash was not a condition. Our case is also unlike Lemon Tree of Ruston, Inc. v. Harvey, La.App.1969, 227 So.2d 177, which treated a written provision which referred to a loan without expressly making it a condition of the buy-sell agreement; there an ambiguous written clause was construed in the light of uncontradicted parol, while here we have neither an ambiguous clause nor uncontradicted parol.

Friedman’s Claim

Friedman did not recall exactly when it was that Craft told him that defendant had told Craft that defendant “would not go through with the transaction.” He would place it at about three or four weeks prior to the November 1 deadline for the act of sale. Craft says it was about October 1 that he told Friedman. The real estate agent who hand-wrote a September 27 addendum to her listing agreement testified that Craft told her both how to word it, and that Friedman had given the wording to Craft, so as to avoid commission liability either on a sale to defendant or on failure of defendant to “release” the property for sale to another.

Thus, the evidence, including a virtual admission by Friedman, is that he had reason to believe as early as October 1 that defendant would have no use for his services, yet he thereafter went ahead with those services. Friedman, a lawyer, knew that the employment of a lawyer is mandate, terminable at the client’s will; C.C. 3028; Cabral v. Heitkamp, La.App.1971, 252 So.2d 353. A client who orders a title examination because he is a prospective purchaser will ordinarily have no use for the examination once he is no longer a prospective purchaser.

In our opinion, when Friedman learned at the beginning of October that defendant told Craft he could not purchase, Friedman’s attorney-client relationship with defendant obliged him to verify defendant’s situation. Communication with defendant would have immediately made certain what Craft had already acted upon (and what Friedman acted upon ultimately in sending the notice of sale to defendant • — -though not to Craft — by registered mail): defendant had decided not to purchase, and therefore could get no benefit whatsoever from Friedman’s as yet unren-dered services. Friedman could have recovered for services already performed, but he could not resist termination of his mandate. He has not shown that any services were performed before October 1 (nor their worth), and we are therefore unable to award any portion of the fees claimed.

The judgment in favor of Craft is affirmed at defendant’s cost; the judgment in favor of Friedman is reversed and his suit is dismissed at his cost.


author: GULOTTA; Judge.

text:
    CITY OF KENNER v. Joseph A. WOOL, Jr., and Municipal Fire and Police Civil Service Commission of the City of Kenner.
    No. 7007.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.

      H. A. Vondenstein, Kenner, for plaintiff-appellee, City of Kenner.
    Oneal G. Legendre, Jr., Kenner, for defendant-appellee, Joseph A. Wool, Jr.
    F. L. Morris & Associates, Philip R. Johnson, Metairie, for defendant-appellant, Municipal Fire and Police Civil Service Commission of the City of Kenner.
    Before SAMUEL, GULOTTA and BEER, JJ.
   GULOTTA; Judge.

This is an appeal from a judgment of the trial court which set aside and vacated an order of the Municipal Fire and Police Civil Service Commission of the City of Kenner. We affirm.

The Kenner Police Chief demoted defendant, Joseph A. Wool, Jr., from the rank of sergeant to patrolman and suspended him for a period of 30 days. The Commission set aside the demotion of Wool, but increased the suspension period from 30 to 60 days. The City of Kenner appealed the Commission’s ruling to the district court which set aside the decision of the Commission and reinstated the order of the Police Chief. This appeal, filed by the Commission, followed. Defendant Wool did not appeal.

Following an investigation by the Internal Affairs Division of the Police Department, Wool was demoted and suspended for violation of departmental rules. Those rules claimed to have been violated by defendant are: (1) willful disobedience of rules of order; (2) being under the influence of liquor; (3) conduct unbecoming an officer; (4) neglect of duty; and, (5) being absent from duty without permission. It was stipulated that Sgt. Wool was the shift commander on the 12:00 midnight to 8:00 a. m. watch; that he punched in at 12:04 a. m. in civilian clothes; that he went home; that he did not notify any superior officers, but did notify subordinates that he was available in case he was needed; that he returned to his job at 2:00 a. m. It was further stipulated that at approximately 2:20 a. m., while driving in his personal automobile, in civilian clothes, he came upon a subordinate police officer on the corner of Veterans Boulevard and Williams Boulevard. The officer was in a stopped police unit, and Wool advised the officer that he was available in case he was needed. Whereupon, Wool went home and did not return to duty for the remaining part of the shift. He did not punch out at 8:00 a. m.

Evidence at the Commission hearing' indicated that when defendant Wool punched in, he notified the jailer on duty, a civilian employee, that he was ill and was returning home. The jailer was not a superior officer of defendant Wool. This civilian employee testified that Wool smelled of alcohol when he reported for duty. No further testimony was elicited relative to Wool being under the influence of intoxicating liquor while on duty.

It is the contention of the Commission that the trial judge erred in setting aside its order without a finding that the Commission’s action was not in good faith. A further argument advanced by the board is that LSA-R.S. 33:25o! and LSA-R.S. 33:2477, when read together, afford the Commission a broad scope of review of the appointing authority’s orders, thereby allowing a modification of those orders, without a finding of bad faith.

The City of Kenner, on the other hand, claims the Commission’s scope of review is limited to a determination of whether or not the appointing authority acted in good faith.

The matter was submitted to the trial judge on the evidence taken at the Commission’s hearing and on briefs. In written reasons for setting aside the order of the Commission, the trial judge in pertinent part states:

“The Commission did not conclude that the Chief’s action was either without cause, made in bad faith or unreasonable. In fact, the Commission found that Sgt. Wool was guilty of (1) willful disobedience of rules of order, (2) neglect of duty and (3) being absent from duty without permission (reference the Commission’s ‘Findings of Fact’).”

We agree with the rationale of the trial judge that absent a Commission finding of bad faith on the part of the Police Chief, the Commission is without authority to modify the Chief’s actions. The Commission’s scope of review, in an appeal by an employee, as set forth in LSA-R.S. 33:2501, is limited to a determination of whether the action taken by the appointing authority was “in good faith for cause.” The Commission is not vested with the authority to modify or set aside the decision of an appointing authority merely because the Commission disagrees with that decision or finds it too harsh. Absent a finding of bad faith without cause, the Commission cannot substitute its judgment for that of the Police Chief.

In the instant case, the record simply does not support a finding that the Chief acted in bad faith. Consideration of the testimony taken at the Commission hearing leads us to a conclusion that the Commission properly found defendant guilty of willful disobedience of rules of order, neglect of duty and being absent from duty without permission.

We reject the Commission’s contention that the trial judge erred in setting aside its order without a finding that the Commission’s action was not in good faith. It is true that LSA-R.S. 33:2501 limits the trial court’s scope of review to a determination of whether or not the Commission acted in good faith. However, this limitation is not applicable when the Commission had gone beyond its scope of review. A different conclusion would lead to the illogical result that the Civil Service Commission could go beyond its scope of review as long as it acted in good faith. Clearly, this was not the intent of the Legislature. Furthermore, the Administrative Procedure Act, LSA-R.S. 49:964(G) states:

“The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“ * * *
“(2) In excess of the statutory authority of the agency;”

We conclude the Commission went beyond its statutory authorized scope of review when it modified the decision of the appointing authority without a finding of bad faith without cause. Accordingly, the trial court properly set aside and vacated the Commission order.

Finally, we reject the theory that LSA-R.S. 33:2477(4), (5) grants the Commission authority to review, modify or set aside any administrative decision affecting personnel in the classified service (without first concluding the appointing authority was not in good faith) when the Commission deems such action is “desirable or necessary in the public interest . . .”

LSA-R.S. 33:2477(4), (5) is a statute which is general in its terms and sets forth, in broad language, the duties of the board or commission, whereas LSA-R. S. 33:2501 sets forth the specific scope of review of the Commission when an employee in classified service appeals the decision of an appointing authority. When a court is confronted with the application of a general statute or a specific one, the general law must yield to the specific. See Kearns v. City of New Orleans, 160 So. 470 (La.App., Orl.1935); LeLong v. Sutherland, 134 So.2d 627 (La.App., 4th Cir. 1961).

Having concluded the trial court properly set aside and vacated the decision of the Municipal Fire and Police Civil Service Commission of the City of Kenner, we affirm the judgment.

Affirmed.

      . LSA-R.S. 33:2501. Appeals by employees to the board
      “ * * * The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.
      “ * * * If either the appointing authority or the employee fails to appear at the place, and on the day and at the hour fixed for the hearing, the board may decide the issue involved on the basis of the evidence adduced and confined to the question of whether the action taken against the employee was made in good faith for cause set forth in the provisions of this Part. Both the employee and the appointing authority shall be afforded an opportunity to appear before the board, either in person or with counsel, and present evidence to show that the action was or was not taken in good faith for cause as set forth in the provisions of this Part. * * * If they find that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action. * * * ”

      . LSA-R.S. 33 :2477. Duties of the board “The Board shall:

      “(4) Make, at the direction of the mayor, commissioner of public safety, chief of either the fire or police department, or upon the written petition of any citizen for just cause, or upon its own motion, any investigation concerning the administration of personnel or the compliance with the provisions of this Part in the said municipal fire and police services ; review, and modify or set aside upon its own motion, any of its actions; take any other action which it determines to be desirable or necessary in the public interest, or to carry out effectively the provisions and purposes of this Part.
      “(5) Conduct investigations and pass upon complaints by or against any officer or employee in the classified service for the purpose of demotion, reduction in position or abolition thereof, suspension or dismissal of the officer or employee, in accordance with the provisions of this Part.”

      . LSA-R.S. 33:2501, providing for judicial review, in pertinent part states :
      “ * * * This appeal shall lie direct to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled. * * * This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part. No appeal to the court shall be taken except upon these grounds.”
      Identical language is found in LSA-Const. art. 14:16.1(31).


author: SCHOTT, Judge.

text:
    Kathy Mary BOYLE, Individually and for and on behalf of the minor, Scott Gerard Boyle v. Phil Lawrence DAIGREPONT.
    No. 7280.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    William A. Summers, III, for defendant-appellant.
    Salomon & Farmer, I. Bernard Salomon, New Orleans, for plaintiff-appellee.
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

Appellee has moved to dismiss this appeal on the following grounds :

“1 That the full transcript of this trial has not been lodged in the Court of Appeal, because in accordance with information received from the Court Stenographer who took two days of the testimony she was not paid for her work by the Appellant.
“2. The bond filed in connection with this appeal is defective and since it does not specify any amount for which the Appellant and his Surety are bound and the time for living bond has expired.”

Taking these in inverse order, while the amount of the bond is omitted from its indemnification paragraph, in the bond’s preamble appellant recites that he “has this day obtained an order of suspen-sive appeal therein, conditioned upon the furnishing of this obligation.” This order fixes the amount of the bond at $750. Upon reading both the bond and the order, it is apparent that the bond is for $750 by reference. We have concluded that appel-lee’s objection is to the form of the appeal bond, jurisdiction over which remains in the trial court pursuant to LSA-C.C.P. Art. 2088. Therefore, the motion to dismiss the appeal on that ground is denied.

We note here that appellee’s motion was filed on August 29, 1975, while the date of the lodging of the appeal and the last extended return date was on August 18, so that the motion was not filed within the three day limit prescribed by C.C.P. Art. 2161. Nevertheless we have considered the motion with respect to the defective bond because appellee suggested that the bond’s deficiency was a jurisdictional defect.

With respect to appellee’s first ground for dismissal, the untimeliness of her motion requires that it be overruled pursuant to Favrot v. Favrot, 252 La. 192, 210 So.2d 316. Nevertheless, it is necessary for us to order the trial court to complete the record pursuant to C.C.P. Art. 2132. The record contains a transcript of the proceedings held in the trial court on September 24, 1974, but that transcript shows that the matter was continued until November 25. An affidavit by the stenographer recites that the transcript of two days of testimony was not lodged in the Court of Appeal because she was not paid for the transcript “despite repeated demand for payment.” The clerk has likewise certified to us that only one day’s testimony has been filed. However, the attorney for the appellant in an affidavit recites that the charges made by the court reporter for the two days’ testimony “are unknown to defendant.”

Although C.C.P. Art. 2132 authorizes us to order the trial court to file the transcript of additional testimony in this Court, C.C.P. Art. 2127 provides that he shall do so only “upon the timely payment to him by the appellant of all fees due in connection with the appeal . . ..” For this reason, our order will be conditioned upon payment by appellant of the cost for transcribing the additional testimony.

Accordingly, the motion to dismiss the appeal is denied. The clerk of the 24th Judicial District Court is ordered to supplement the record of this case on appeal by filing the transcript of testimony taken by Faye B. Cemo, Court Reporter, within thirty days from date of this order, provided that the appellant pays all fees due in connection with this transcript.'

Motion denied.

Order issued.