source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    John Ray OGDEN, Plaintiff and Appellant, v. Charley W. SMITH, Defendant and Appellee.
    No. 5859.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      Stephen E. Everett, Alexandria, for defendant and appellee.
    Griffing & Scott by George Griffing, Jonesville, for plaintiff and appellant.
    Before CULPEPPER, WATSON and STOKER, JJ.
   STOKER, Judge.

This appeal arises out of a tort action for personal injury damages. Charley W. Smith, defendant-appellee, used a shotgun and shot and injured Patsy Brown and John Ray Ogden. A companion suit was filed by Patsy Brown (now Ogden) and the two suits were consolidated for trial and appeal. We are rendering judgment in the companion case on this date. See Patsy Brown v. Charley W. Smith, 344 So.2d 1109. The defense to the suit is that Charley W. Smith acted reasonably in the belief that he was justified in shooting plaintiffs-appellants because they were attacking his daughter, Wanda Smith Ogden, and her life was in imminent danger. Wanda Smith Ogden was the estranged wife of John Ray Ogden, and, therefore, Charley W. Smith had been the father-in-law to John Ray Ogden. The trial court gave written reasons for judgment in which he rejected the demands of John Ray Ogden and Patsy Brown, rejected a reconventional demand of Charley W. Smith against John Ray Ogden and cast plaintiff-appellants for all costs in both suits including the costs of the reconven-tional demand.

As we view the case it involves, not only the reasonable belief of Charley W. Smith, but the question of whether he was justified in using the force employed in the manner he did. In short, was the force used excessive 1

No brief was filed in this court on behalf of defendant-appellee, Charley W. Smith. We have carefully reviewed the testimony and all events and statements made by the witnesses and parties, occurring both before and after the shooting. With due deference to the findings and application of law made by the trial judge, we feel that we must reverse.

We set forth here in its entirety the reasons for judgment given by the trial court. ' They read as follows:

OPINION
This case was tried by this Court on March 4, 1976, and was taken under advisement. The Plaintiffs, PATSY BROWN (Suit 11,358) and JOHN RAY OGDEN (Suit 11,359), seek damages as a result of a shooting which happened on August 19, 1973, at the residence of the Defendant, CHARLEY W. SMITH, in the Sandy Lake community, Catahoula Parish, Louisiana. It appears that after CHARLEY W. SMITH, and his family (and his daughter, Wanda Smith Ogden and her little child), retired for the night, JOHN RAY OGDEN and PATSY BROWN came by motorcycle to the mobile home of Wanda Smith Ogden located on land of Defendant. The reason for the visit is disputed but in any event, the evidence bears out that Wanda Smith Ogden was in her night clothes and was awakened. She went outside to apparently talk to her estranged husband, JOHN RAY OGDEN, and apparently became greatly incensed that he had come to her house trailer located on lands of her father in the company of another woman, PATSY BROWN. This meeting led to an altercation and the granddaughter, (Wanda Smith Ogden’s daughter), ran to the residence of CHARLEY W. SMITH, awoke him and told him words to this effect, “they are beating up my mother”. According to the testimony of the child, Defendant’s wife and the Defendant, CHARLEY W. SMITH, he arose, took his shotgun, walked to the front porch and fired two shots thinking that there were two men in the yard fighting his daughter (both Plaintiffs were wearing pants and the Defendant testified that he could not tell that one of them was a woman.) No one disputes the fact that serious injuries were inflicted upon JOHN RAY OGDEN as a result of the shooting.
The question posed for consideration in this Court’s opinion turns on what belief that Defendant had when the shots were fired. The Court finds that Defendant was acting in defense of his child (Article 236 of the Louisiana Civil Code). If the Defendant reasonably believed the danger to his daughter was imminent, he had reasonable grounds to do what he did (McCullough, et al. v. McAnelly, La.App., 248 So.2d 7, 1971).
The Court finds as proven the following important facts:
(1) The defendant was a man of small statute, (sic)
(2) JOHN RAY OGDEN, one of the Plaintiffs, was a man of rather large statute, (sic)
(3) The Defendant thought that his daughter, Wanda Smith Ogden, was in physical danger.
(4) The Defendant was awakened from his sleep and the altercation happened late at night.
(5) The Defendant testified that he used a fine shot and did not use a heavier shot (buckshot which was readily available).
(6) That the Plaintiffs had been drinking.
Adding up all of the above factors, the Court finds that the Defendant reasonably believed the danger to his daughter’s life was imminent and under the circumstances, he had the right to use the force that he did use on the Plaintiffs. Additionally, the Court finds that certainly the Plaintiffs were contributorily negligent in coming to the residence of Wanda Smith Ogden located on the property of CHARLEY W. SMITH under the influence of alcohol late at night and that their actions contributed to the injuries that they sustained.
The demands of Plaintiff are rejected at their costs. The demands of Defendant are likewise rejected at the cost of Plaintiffs.
The Court directs that Defendant’s attorney prepare a Judgment in conformity with this Opinion which shall recite that it is in conformity with this Opinion which Judgment shall be approved as to form by both attorneys and shall be presented to the Court for its signature and notice of Judgment shall be served by the Clerk on Counsel for Plaintiffs and Defendants.

BURDEN OF PROOF

In assault and battery cases a plaintiff has the general burden of proof which any plaintiff has in a tort or damage suit. In addition, there are expressions in the jurisprudence that hold plaintiff has the burden of proof to show defendant was the aggressor, or that his own actions did not constitute a provocation sufficient to justify defendant’s conduct. Jackson v. City of Baton Rouge, 286 So.2d 743 (La.App. 1st Cir. 1973) writ refused, 290 So.2d 300 (La.1974); Jacob v. Laborde, 280 So.2d 621 (La.App. 4th Cir. 1973) and Middleton v. Shaw, 271 So.2d 358 (La.App. 2nd Cir., 1972). However, those cases involved situations where the defendant was himself involved directly and did not purport to act in defense of a third party. Appellee, here, is claiming he was defending his daughter. Here, the trial court has found justification for the shooting in this case under Article 236 of the Louisiana Civil Code. We think the appropriate statement of the burden of proof applicable in this case is to be found in Bauman v. Heausler, 188 So.2d 189 (La.App. 4th Cir. 1966), particularly since it prescribes the burden of proof where Article 236 is invoked, i. e. defense of one’s child. The applicable language is found on page 191 of the opinion and reads as follows:

Counsel for defendant cites LSA-C.C. art. 236, which reads as follows:
“Fathers and mothers may justify themselves in an action begun against them for assault and battery, if they have acted in the defense of the persons of their children.”
The defense is based primarily upon the argument of justification under the foregoing codal article in protecting his child. We find no fault with the principle of law upon which this defense is made, but our jurisprudence is abundantly clear that provocation or justification for a battery is a question of fact to be determined in the light of circumstances of each individual case, and the burden of proof is upon the. defendant. Rivers v. Brown, 168 So.2d 480 (La.App. 3d Cir. 1964); Barrett v. Matthews, 138 So.2d 151 (La.App. 2d Cir. 1962); Theriot v. Gianelloni, 121 So.2d 275 (La.App. 1st Cir. 1960); Bethley v. Cochrane, 77 So.2d 228 (La.App.Orleans 1955).

It will be noted from this expression of law, that defendant-appellee, Charley W. Smith, bears the burden of proof in this case. In that regard we find that he failed to carry his burden and, further, that he was “his own worst witness.”

REVIEW OF FACTS

While the trial court’s statement of facts is essentially correct, we do not believe it sets forth the full factual circumstances necessary to resolve the issues and especially to determine the question of whether Charley W. Smith carried the burden of proof imposed upon him as noted above. Therefore, we set forth a more detailed statement of facts as disclosed by the record.

To begin with, we feel it should be noted that at the time this trial took place plaintiff Patsy Brown and plaintiff John Ray Ogden, had become married. The former marriage between John Ray Ogden and the defendant’s daughter, Wanda Smith Ogden, had been dissolved. At the time of the incident itself, the marriage between John Ray Ogden and Wanda Smith Ogden had ended if they were not, in fact, legally separated or divorced at that time. As a matter of background, it was clearly established (whether relevant to the facts of this case or not) that John Ray Ogden was considered in the community to be something of a troublemaker and had been involved in numerous arrests for disturbance of the peace.

It also appears that after Wanda Smith Ogden ceased living with her husband, she went to reside with her father and mother. At the time of the shooting in this case Charley W. Smith had permitted his daughter to locate a trailer on his premises near his home. Prior to this time, however, John Ray Ogden had on a number of occasions come to the Smith home and remained quite late at night in discussions with his then estranged wife. There is some suggestion that he was attempting to get his wife to return to him, but whether their discussions had this meritorious objective or were simply a continuation of wranglings within the family is immaterial. The testimony of Charley W. Smith itself indicates that these visits annoyed him considerably. On one occasion he ordered John Ray Ogden not to ever return to his property.

On the night in question, at some late hour, well before midnight according to the plaintiffs and well after according to the other side, John Ray Ogden rode his motorcycle, accompanied by Patsy Brown, to the trailer occupied by his former wife. John Ray Ogden drove off of the highway. How far into the yard in front of the trailer he drove is a matter which is disputed, but that fact is not highly material. The testimony of John Ray Ogden, Patsy Brown and the daughter of the defendant, Wanda Smith Ogden, is all in agreement to the effect that it was Patsy Brown who came to the door of the trailer and knocked for the purpose of giving Wanda Ogden a key to a vehicle which had belonged to the community existing between her and John Ray Ogden. There is absolutely no dispute about this. According to the testimony of John Ray Ogden and Patsy Brown, the former elected to remain on his motorcycle rather than confront his wife and expose himself to possible difficulty or argument.

Wanda Smith Ogden accepted the key but upon learning that her husband was outside she came outside and engaged in conversation with him and Patsy Brown. There is a conflict in the testimony between plaintiffs-appellants and Wanda Smith Ogden as to why the latter left the trailer. Wanda Smith Ogden claims that she had her former husband under a peace bond and Patsy Brown had stated he wanted to talk to her about lifting the bond and that was the reason that she went outside. Plaintiffs-appellants claim, on the other hand, that Wanda Smith Ogden simply came outside to confront her husband. In any event, she came outside and left the safety of her home without being forced or required to do so.

There is also some dispute as to what took place after she got outside. Harsh words began to flow back and forth. At one point Wanda Smith Ogden took the key from the motorcycle and threw it in a ditch according to plaintiffs-appellants. Patsy Brown was known to Wanda Smith Ogden but they were on good terms. Patsy Brown lived nearby and was a beautician and had worked for the Smith family. Nevertheless some harsh words took place between the two women and a scuffle started. At this point the ten year old daughter of Wanda Smith Ogden came into the picture. Her name is Paula McClure and she is a daughter by a former marriage of Mrs. Ogden. She observed what took place from a window in the trailer and saw her mother and Patsy Brown fighting. Then she saw her mother go down to the ground. According to her testimony she sneaked between the cars in front of the three persons and went next door and awakened her grandfather, the defendant-appellee. She said to him “Papa, papa, Sonny (John Ray Ogden) and them is killing my mama”. She did not indicate to her grandfather that it was Patsy Brown. Patsy Brown was dressed in shorts and was wearing a helmet. Under the circumstances anyone viewing her without knowing who she was could easily assume that she was a male as defendant-ap-pellee later testified he assumed she was.

Paula McClure candidly admitted that she never saw her stepfather, whom she referred to as Sonny, do anything to her mother. She also admitted that her mother and Patsy Brown had been friends and she knew of no reason why Patsy Brown would want to hurt her. In fact, the best evidence is that John Ray Ogden never got off of the seat of his motorcycle.

When questioned about whether or not Paula McClure saw Patsy Brown do anything to her mother the questioning went as follows: (Tr. 181)

“Q. Did you see Patsy do anything to your mother?
A. Yes.
Q. What did you see her do?
A. When I seen my mama fall, I knew then that mama had kind of probably got mad, then it would be a fight. Then I knew they would both get into a fight. I seen mama pulling the helmet off of Patsy, and Patsy grabbing her and everything. I thought that they might would kill each other.
Q. Now, you saw your mother fall. Did you see your mother get back up?
A. Yes, sir, when she did she went to Patsy.
Q. And did you see your mother jump on Patsy?
A. Yes.
Q. And did you see Patsy grab your mother?
A. Yes, sir, like this. She didn’t grab her like that. She grabbed her around.
Q. What else did you see? Is that all you saw?
A. I saw Sonny kept his hands in his pockets, that’s why I was scared. That’s why I was afraid he would kill my mama.
Q. But what you’re telling us that you saw is all that you saw?
A. Yes, sir, that’s all I seen.”

The remarks about Sonny keeping his hands in the pockets, has reference to other testimony that he kept his hands in his pockets on previous occasions and there was some speculation that he might have a pistol or weapon in his pocket but no proof of this was ever shown.

In the testimony of defendant-appellee he traced the history of John Ray Ogden coming to his house talking to his daughter. He asked his daughter if there was any possibility of a reconciliation and she assured him that she would not go back to him “to save my life”. He then indicated that if that was the way she wanted it then “All right”. However, on another occasion the son-in-law did come. Mr. Smith testified as follows:

—So, that night he come there and kept me up to 5:00 o’clock that morning, well I couldn’t get to sleep then. I had to get up then. What I mean, I had to go to work. My wife stated there that I went to work at 7:00, but I go to work at 7:30, and get off at 4:00. Alright, that night he come there and I got up out of my chair, he was sitting on the couch, him and Wanda, Wanda was sitting right beside of him, I said, “Sonny, now I want you to listen to me very carefully. When you walk out that gate tonight don’t put your foot back on my property, no where else around here.’’ He never said a word. When he got up and left that was it. (Emphasis supplied)

Apparently Mr. Ogden did return on occasions but in order not to force the issue Mr. Smith remained in his bedroom attempting to sleep. He testified that on one occasion Ogden came to the door with someone else and knocked and that he ignored them and they left. Then he testified as follows:

“A. —So, they finally left. So now you listen to me very carefully every one of you. (Apparently the witness was addressing everyone in the courtroom) I caught all my kids gone, everyone of them, and I told my wife, sitting on the couch, I said “Mama, there’s something got to be done about this. I can’t stay awake and keep my job and work, all night. Something’s got to be done.” I didn’t say what. Don’t misunderstand me that I made no threats and he never made any. (Emphasis supplied)
Q. When was this?
A. Right before the shooting now.”
Then he further testified.
“A. * * * This night that this grand-baby came through the house into my room, and grabbed me .
Q. And you were asleep?
A. I was asleep. I couldn’t hear nothing outside the house — outside of the fence, you see.
Q. What time of night was this?
A. That was 11:00 o’clock, between 11:00 and 11:30. And I just reached and got this gun, but before this, I want you to listen to me carefully, I got one shell laying on the little light table by my bed, one shell laying there, two in the magazine. The gun won’t held but three; one in the barrel and two in the magazine. I got this shell here, when I got middleways of the bedroom I shifted one in the barrel.
Q. What did your granddaughter say to you when she .
A. She said, “Papa, don’t kill mama. Don’t shoot mama.”

But the time he got out to his front porch he had loaded the gun with number six shells, squirrel shot, light load, short brass. He walked out on his front porch and walked to the top doorstep. His testimony then was as follows:

“A. * * * I was standing on the top doorstep. I hollered twice, no answer. I shot one time that way, no answer. Well, when Wanda fell backwards I seen this little man start towards her. I said, “Well, I just as well to stop him before he gets any further.” He was going toward the trailer. I didn’t hear nothing. So, when he turned and looked around I shot again from here down, and down he went right there, and everything just vanished. And Wanda said, “Daddy, don’t shoot no more.” Well, I couldn’t shoot no more, three shells.”

This testimony is directly contradicted by that given by his daughter, Wanda Smith Ogden. Her testimony was that she was standing between Patsy Brown and John Ray Ogden.

The testimony of Wanda Smith Ogden makes it quite clear that her father had become totally exasperated with the nightly visits of John Ray Ogden and he had ordered him not to come anymore. The testimony of Wanda Smith Ogden makes it clear that she was as much a cause of the fight as anyone.

In a portion of her testimony the questioning and testimony went as follows:

“Q. And after ascertaining that it was Patsy Brown you opened the door and wanted to know what she wanted?
A. Yes, I did.
Q. And then when you found out that John Ogden was there, you went out, isn’t that right?
A. Yes, I did.
Q. You weren’t afraid to go out?
A. In a way, but I was mad.
Q. You went ahead though?
A. Yes, I did.”

She was asked to describe to the court exactly what had happened after she got outside.

“A. Well, I was standing at the motorcycle, John was sitting on the motorcycle. They kept on and on and on, and I got mad. (She was apparently referring to attempts to get her to drop charges against Ogden that he was under peace bond for). I think he laid the sunshades laying across the motorcycle. I got mad and grabbed the sunshades and the keys and throwed them down. I think I throwed the sunshades down. No, I didn’t. I throwed them — yes, I did. I throwed the sunshades down. She started over there where I was at and she pushed me down on the ground. When I got up I jumped on her.
Q. Then what happened?
A. I grabbed the motorcycle helmet she had on and tried to pull it off, but I couldn’t get it off. She grabbed my arm in an arm lock. She said, ‘Wanda, I’m not going to fight you.’ She started back over to the motorcycle and we were still arguing. And daddy come out on the porch. He said ‘What are you all doing out there?’ Nobody never said a word, then he shot.
Q. How many times did he shoot?
A. He shot Sonny and then he shot Patsy. Sonny fell off the motorcycle and then Patsy fell down. I looked around and I said ‘Daddy, stop.’ ”

In several places in her testimony Mrs. Ogden made it clear that John Ogden never made any move whatsoever to hurt her and that the fight or scuffle was entirely between her and Patsy Brown. It is clear, however, that after Patsy Brown pushed her down that Wanda Ogden got up and the scuffle continued. She testified that when she heard her father shout none of them paid any attention to him. She claims that she told her father not to shoot after the second shot. Her testimony at this point was as follows:

“Q. You didn’t holler after the first shot?
A. No, I didn’t. It scared me.
Q. What happened on the first shot?
A. Sonny fell off the motorcycle.
Q. Where were you standing when Sonny fell off the motorcycle?
A. Right by the motorcycle, right in front of him.
Q. Right in front of him?
A. Yes.
Q. The shot could have just as easily have hit you as .
A. If it had glanced — hit the motorcycle and glanced, yes, I would have got shot.
Q. How far away was Patsy?
A. She was standing right beside me.
Q. So, all three of you were together?
A. All three.
Q. Were you in the middle?
A. I guess you’d say I was in the middle, or close to the middle.”

As the testimony extensively quoted above indicates it is clearly at variance with that given by Wanda Smith Ogden’s father. Except for the fact that he hollered before he shot, it is evident that he made absolutely no attempt to discover what was going on. Apparently there was some light outside but it was not one of the lights common in open rural areas that light up the entire area, but was a common ordinary incandescent light (TR 166). The wife of Charley W. Smith also testified that all three of the parties at the motorcycle were standing up together. However, she did say that it looked as though they were fighting. She did not recognize anyone and all that she had to go by was what her granddaughter, Paula, had stated to her grandfather.

Everyone who testified in the case, including Wanda Smith Ogden, Mr. Smith and the mother, Mrs. Smith, testified that no threats had ever been made by John Ray Ogden against his former wife or anyone else. On Cross Examination, Mr. Smith testified as follows:

“Q. Isn’t it a fact that you told the investigative officer, Clyde Walker, that you shot because you were just tired of if and wanted to put a stop to it?
A. That’s exactly right because I had to do something. I had to get some sleep because I was depending on that job for my living.”

Deputy Walker testified and gave testimony as follows: (TR 77):

“A. Deputy Walker, when you questioned Mr. Smith what did he tell you?
A. The best I can remember he told me he was just tired of fooling with them.
Q. Tired of fooling with who?
A. Johnny Ray.
Q. Johnny Ray and who else?
A. It was a family deal, and he was just worn out with the trouble they were having.”

In questioning Mr. Smith at another point (TR 199), he testified as follows:

“Q. You figured if you were going to shoot somebody that would be a good way to get some sleep?
A. No, no, I don’t figure it like that now. (Emphasis supplied)
Q. Well, isn’t that what you did?
A. That’s what I did, but I don’t figure like that. I put a stop to this where he was coming to my house keeping me awake at night, 1:00 and 2:00 o’clock and 3:00 o’clock and 5:00 o’clock in the morning. (Emphasis supplied)
Q. And this is what you told Clyde Walker was the reason you shot, isn’t that right?
A. That’s right.”

Mr. Smith testified he fired his shotgun at a distance of 114 feet from the place where the three parties were standing.

FINDINGS OF FACT BY THIS COURT

We can presume justifiable concern, even alarm, from the action of Paula McClure awakening her grandfather and blurting out the statement that “Sonny and them are trying to kill mama.” Even though there had been no threats, it is clear that Johnny Ray Ogden had frequently physically assaulted his former wife during marriage and such action may have been the cause of the breakup of the marriage. Nevertheless, defendant-appellee in our estimation was not motivated by real fear for the safety of his daughter. In fact, he is either an exceptionally good shot or was extremely lucky. Otherwise, his own daughter should have received a hit from one of the shots fired in her direction. Had he investigated he would have found that his daughter was in no danger. John Ray Ogden was not even a participant in the scuffle. Mr. Smith was at some distance from the parties when he shot — 114 feet by his own statement. Assuming that his warning shout was not answered and assuming that he fired a warning shot, it is clear that he soon seized the opportunity to shoot and he obviously shot to hit.

In an effort to be completely fair with defendant-appellee, and mindful that the trial court concluded the shooting was justified, we have endeavored to place ourselves in Mr. Smith’s shoes at the moment he fired his shots. With due respect to the decision of the trial court, we conclude it was manifestly in error. The evidence strongly preponderates in favor of the conclusion that Mr. Charley W. Smith shot out of sheer exasperation and in an effort to discourage his son-in-law from again coming near his premises. Even, if Mr. Smith was not motivated solely by his ill feelings toward John Ray Ogden, we feel that he used excessive force under the circumstances. In his reasons for judgment the trial court drew attention to the fact that Charley W. Smith had buck shot available but used fine shot instead. The answer to that is that Smith may not have intended to kill anyone, but he did severely wound two people and John Ray Ogden has lost the sight of an eye as a result. We cannot conclude that he acted reasonably in shooting from a distance into a group of three people as he did. We do not feel that defendant-appel-lee has carried the burden of proof imposed upon him as stated in Bauman v. ííeausíer, supra.

The trial court relied upon the case of McCullough v. McAnelly, 248 So.2d 7 (La.App. 1st Cir. 1971). As all the cases in this area point out, each case must be decided on its own peculiar facts and circumstances. The McCullough case itself refers to this general rule. We believe the facts and circumstances of that case are distinguishable from those before us.

CONTRIBUTORY NEGLIGENCE OF CLAIMANTS

Finally we must deal with the finding of the trial court’s holding, as additional reason for the rejection of the claims of John Ray Ogden and Patsy Brown, his finding that they were contributorily negligent. He held:

Additionally, the court finds that certainly Plaintiffs were contributorily negligent in coming to the residence of Wanda Smith Ogden located on the property of Charley W. Smith under the influence of alcohol late at night and that their actions contributed to the injuries that they sustained.

There is clear evidence from which it may be concluded that plaintiff-appellants were under the influence of alcohol. Nevertheless, there is no evidence that being under the influence of alcohol played any part in the affair in question. In terms of proximate cause, cause-in-faet, duty-risk inquiry, or any other criteria for determining negligence liability (or contributory negligence excusing liability), we are unable to see where being under the influence of intoxicants had anything to do with what transpired. John Ray Ogden never did anything but sit on his motorcycle. He sent his wife’s friend, Patsy Brown, to knock on the door to deliver the keys so as to avoid a confrontation with her at her door. Wanda Smith Ogden did not have to leave her trailer, even if requested to do so.

Nor can we conclude that coming to the trailer “late at night” was negligent. The trial court speaks of “their actions which contributed to their injuries” without detailing or describing them. Therefore, we conclude manifest error was committed in concluding plaintiff-appellants were guilty of contributory negligence barring their recovery in this case. Accordingly, we reverse the holding of the trial court and hold that Charley W. Smith is responsible in damages to the plaintiffs-appellants.

QUANTUM OF DAMAGES

Having reversed the trial court, we must fix the damages. At the outset we note that the record reveals that the damages sustained far exceed the ability of Charley W. Smith to pay. His counsel asked him “Mr. Smith, for the record here for the Court of Appeals down in Lake Charles, they don’t know you and if this case gets down that far, I want to ask you something about your finances. You work for the Highway Department?” Mr. Smith replied that he did work for the Highway Department and had done so for 25 years. He was 59 years old at that time (March 4, 1976). He worked in a gang out of the Highway Barn in Harrisonburg and his take home pay was approximately $230.00 every two weeks. He has no substantial assets. He owns one acre of ground with a twelve-year old house on it for which he paid $7,600.00. Pictures in evidence disclose it is unlikely to have exceptional value. At the time of the trial it had been paid for. Mrs. Smith was employed at a Piggly Wiggly store. She was earning approximately $200.00 every ten days. Other than the house, the Smiths owned an “old truck”, 1965 model, and a 1968 Buick. Consequently, we are faced with assessing damages to be paid by a defendant whose combined family income is in the neighborhood of $830.00. Obviously, he cannot fully compensate the plaintiffs for their damages, and in fixing damages in cases of this nature we may consider the ability of the defendant to respond in damages. Urk v. Southern Farm Bureau Casualty Insurance Company, 181 So.2d 69 (La.App. 2nd Cir. 1965), writ refused 248 La. 909, 182 So.2d 661 (1966); Tabb v. Norred, 277 So.2d 223 (La.App. 3rd Cir. 1973) writ refused, 279 So.2d 694 (1973) and Adams v. Ross, 300 So.2d 192 (La.App. 1st Cir. 1974).

We come now to the actual damages suffered by John Ray Ogden and Patsy Brown. While it has no particular bearing on the damages to be assessed, we note that since the shooting incident involved in this case, that Patsy Brown became divorced and Patsy Brown and John Ray Ogden became man and wife.

At the time of the shooting incident involved in this case, John Ray Ogden was 29 years old and was employed as a crane operator for Natchez-Adams Port of Natchez, Mississippi. He had been employed at this work for three years and four months. He was hit in the chest and face and around his neck by the blast of pellets from the shot which first hit him. He testified that he was hit in the feet by the shot which hit him after he fell to the ground. Although he had blood in his eye and could hardly see he was able to get up from the ground and went to seek help. Ultimately, however, he and Patsy Brown were both taken to the Jonesville Hospital.

From the Jonesville Hospital Ogden was transferred to the Jefferson-Davis Hospital in Natchez, Mississippi. There he was operated on by an ophthalmologist, Dr. John Robbins Langlow. Dr. Langlow testified by deposition that a pellet had completely pierced the right eye which he sutured for the moment expecting that traumatic cataract would develop. This did, in fact, develop in short order and Dr. Langlow referred Ogden to Dr. Delmar R. Caldwell in Jackson, Mississippi at the University Medical Center there. Over a period of time Ogden underwent two operations performed by Dr. Caldwell for the removal of cataracts. He was never successful in regaining much sight. Ultimately he suffered a detached retina and was referred to doctors in New Orleans by Dr. Langlow, who in turn referred him to a physician and surgeon in Boston, Massachusetts. In Boston he underwent eye surgery at the Massachusetts Eye and Ear Infirmary and was there for a period of three weeks. His operation was a seven hour operation. The second cataract operation was performed on April 28, 1975. The surgery in Boston was performed sometime thereafter.

As indicated above Mr. Ogden has completely lost the sight of his right eye although he is still employed as a crane operator. He testified that he received numerous pellets in his body and still suffers from having these pellets in his body. From time to time they surface and he is able to cut them out with a razor blade.

After each episode of surgery in which he suffered consequent pain and discomfort, Ogden was required to remain quiet or hospitalized for a period of five days and in the case of the more extensive operations to curtail his operations for a longer period. However, he testified that he lost no pay as he is under a guaranteed 40-hour salary. When he was unable, after the various surgical procedures were performed, to operate his crane he was permitted to do light duty, such as answering the telephone or reading and checking lumber tickets. On cross examination it appears that Mr. Ogden may perhaps be pursuing a malpractice action against one or more of the doctors, but as we understand the matter his principal complaint is that he was not informed of the chances that he would have in connection with the removal of the cataracts and the possibility that he would actually lose the sight of his eye entirely and that he might have saved some slight vision had he not undergone the cataract operation. Nevertheless, the whole evidence indicates that the probability of his losing his sight in the right eye entirely was the most probable consequence of his eye injury from the very beginning and there was only slight hope that any sight could be retained.

Mr. Ogden is now operating his crane although he testifies that his depth perception has been lost and he has to be extremely careful. He drives an automobile and apparently operates his motorcycle. There is some suggestion that he may at some time require a prosthesis being inserted in his right eye but we do not take that into account in assessing the damages.

Mr. Ogden has suffered a total in special damages of $10,715.70. From the previous account of the ability of the defendant-appellee to respond in damages it is quite obvious that he could not hope to compensate Mr. Ogden for the damages which he has suffered. Without reference to damages sustained by Patsy Brown, were-Mr. Smith to be assessed with the special damages incurred by Ogden alone, these damages may very well exceed his total assets. Considering the age of defendant-appellee and the fact that the family income is that contributed not only by him but by his wife, we feel that he should pay the special damages of $10,715.70 and general damages against him should be assessed in the amount of $5,000.00. In fixing the general damages at $5,000.00 we are mindful of the fact that if Mr. Smith were able to pay that these damages might reasonably be fixed at five to ten times that amount. However, we believe that a total of $15,715.70 and the cost of this suit together with what we will assess for Patsy Brown may be within the ability of Mr. Smith to pay.

Accordingly, and for the reasons assigned, the judgment of the district court is reversed and judgment is rendered in favor of plaintiff, John Ray Ogden, and against Charley W. Smith in the sum of $15,715.70, together with legal interest thereon from date of judicial demand until paid, and all costs of this proceeding including the costs of appeal.

REVERSED AND RENDERED.

      . Defendant-appellee, Charley W. Smith, himself testified it was between 11:00 and 11:30 P.M. o’clock.


text:
    Patsy BROWN, Plaintiff and Appellant, v. Charley W. SMITH, Defendant-Appellee.
    No. 5858.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      Stephen E. Everett, Alexandria, for defendant and appellee.
    Griffing & Scott by George Griffing, Jonesville, for plaintiff and appellant.
    Before CULPEPPER, WATSON, and STOKER, Judges.
   STOKER, Judge.

This case was consolidated for trial and appeal with a companion suit, Ogden v. Smith, 344 So.2d 1099 (No. 5859 on our docket), which is being decided on this date. For the reasons assigned in the companion case, the judgment of the district court in the consolidated cases is being reversed and judgment is being granted in favor of plaintiff-appellants against defendant-appellee, Charley W. Smith.

The only additional question to consider here is the amount of damages which should be awarded to Patsy Brown, now Patsy Ogden.

She was first taken to the Jonesville Hospital and then sent to Huey P. Long Hospital in Pineville, Louisiana. There she underwent surgery to remove pellets from her stomach and bladder. She arrived there at approximately 4 to 4:30 AM in the morning and had a painful stay in the hospital. Her period of recuperation was approximately three weeks. She has a twelve inch scar on her stomach running down from her breastbone. This scar pains her at times, but otherwise she experiences no particular discomfort. She testified that she is unable to lift anything heavy and cannot strain. The charges incurred by her at the Charity Hospital amounted to $802.10 and the ambulance bill owed to Catahoula Ambulance Service for her trip was $70.00.

Although the parties appear to recognize that the Huey P. Long Hospital would have a lien on any special damages assessed to cover her bill, we nevertheless think that Mr. Smith should be cast for those damages. Therefore, we award to Patsy Ogden her special damages in the amount of $872.10. In general damages we will award her the sum of $3,000.00, recognizing as we did in the case of John Ray Ogden, that were it not for the inability of the defendant-appellee to respond in damages for the full amount which might possibly be assessed, her damages should be at a higher figure.

For the reasons assigned in the companion case referred to above, the judgment of the district court is reversed, and judgment is rendered in favor of plaintiff-appellant, Patsy Brown and against defendant-appel-lee, Charley W. Smith in the sum of $3,872.10 together with legal interest from date of judicial demand until paid, and all costs of this proceeding including the cost of appeal.

REVERSED AND RENDERED.


author: WATSON, Judge.

text:
    Cornelius Paul FOREMAN, Plaintiff-Appellee, v. Albert Jesse LUQUETTE et al., Defendants-Appellants.
    No. 5860.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Louis M. Corne, Lafayette, for defendants-appellants.
    McBride & Brewster by Robert R. McBride, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   WATSON, Judge.

Plaintiff, Cornelius Paul Foreman, filed a rule to evict defendants, Albert Jesse Lu-quette and Esther Clostio, widow of Theodore Luquette, from certain property in Du-son, Louisiana. Foreman’s rule does not allege ownership of the property but merely recites that the purpose of the Luquettes’ occupancy has ceased. The prior notice to vacate the property served on defendants states that the owner desires possession.

Defendants answered, alleging that Albert was owner of the property by transfer from Esther and that they lawfully occupy the premises. They also alleged fraud and forgery. The answer is verified by the oath of Albert Luquette.

Judgment was rendered by the trial court making the rule to evict absolute and ordering defendants to leave the premises. The Luquettes perfected this suspensive appeal.

The Luquettes contend that the trial court erred: in requiring the Luquettes to carry the burden of proof; in accepting the testimony of a single witness to overcome Mr. Luquette’s disavowal of his signature on a non-authentic act; in determining the validity of an act of sale of the property from Luquette to Foreman based on comparison of the disavowed signature with other signatures of Luquette; and in holding that Esther Luquette was not entitled to continue to live on the premises after plaintiff Foreman admitted giving her a right of habitation.

The matter is a family dispute. The property was originally owned by defendant, Esther Clostio Luquette, the mother of Albert Luquette and mother-in-law of plaintiff Foreman. Albert Luquette acquired the property by deed from his mother dated April 4, 1973. (Court-1, TR. 11) In August of 1973, Albert moved to Houma, Louisiana. At approximately the same time, his mother, who had been living with him on the property, moved to Freeport, Texas. In evidence is an instrument dated April 15, 1974, by which Albert Luquette sold the property to Foreman (TR. 12). Albert denied that he signed a deed, although he admitted that the signature on the instrument looked like his and even might be his. The act of sale was recorded on the recited date of execution. Luquette was in Oklahoma at that time, according to his driver’s log book for Younger Transportation, Inc. (D-l, TR. 18).

Foreman signed the deed on April 15, when he paid the Lafayette Building Association $945.31, the amount necessary to bring the notes on the property up to date. The additional recited consideration of $100 was not paid, although Foreman said he had previously given Albert more than that. He admitted there was no agreement between him and Albert about the $100. According to Foreman, Luquette had signed the deed at an earlier date and was not present on April 15, although Benoit, a witness, and Credeur, the notary, were present. This testimony was contradicted by Benoit who said he did not witness Foreman’s signature. After Foreman acquired the property, he sent his mother-in-law a money order for $25 to enable her to move back to her home from Texas. Foreman told her that he had acquired the property for her and that she could remain as long as he could afford to keep her there. Both she and Albert have remained on the premises since that time. Foreman did not explain why he has now changed his mind.

Dallas A. Credeur, an officer of the Lafayette Building Association, testified that he was familiar with the transaction between Luquette and Foreman and identified his signature as Notary Public on the act of sale between them. Credeur testified from his loan records that Foreman bought the property by paying the installments for 10 months. Credeur further testified that he remembered Luquette coming in to sign the deed and Foreman signing on another date. The matter was primarily handled by collection officer Benoit, but Credeur said he knew and recognized Luquette at the time of execution.

Barbara Dugas, one of the two witnesses to the instrument, denied being present when Luquette signed it. Wilson Benoit, the other witness, also said she was not present. Benoit, although he witnessed Lu-quette’s signature, said he was not present when Foreman signed at a later date. Be-noit, a vice president and collection officer of the Lafayette Building Association, said he had tried to get Luquette to sell the property to his brother-in-law, since an independent sale was not possible because of judgments against Luquette. Benoit explained to Luquette that the property was being sold to his brother-in-law because Lu-quette was going to lose the property through foreclosure and had no alternative.

Esther Clostio Luquette testified that Foreman said he would hold the property for Albert until Albert

“ . . . could get back on his feet . and he also told me that I could live there the rest of my life, when he purchased the place.” (TR. 75)

According to her, Foreman’s promise was unqualified.

The trial court concluded that Luquette did in fact sign the instrument in question on the basis of comparing the signature with that in the pleadings, in the sale from his mother and on Luquette’s driver’s license. The court decided that the Lu-quettes had the burden of proof to prove fraud in the transaction; and had not carried that burden.

The first issue is whether plaintiff Foreman is entitled to use summary eviction procedure against the Luquettes.

The proceeding is one under LSA-C.C.P. art. 4702, which states:

“When an owner of immovable property wishes to evict the occupant therefrom, after the purpose of the occupancy has ceased, the owner, or his agent, shall first cause a written notice to vacate the property to be delivered to the occupant. “This notice shall allow the occupant five days from its delivery to vacate the premises.”

There has been no prior judgment in a petitory or possessory action determining the ownership of the property. Compare Avoca, Incorporated v. Singleton, 271 So.2d 630 (La.App. 1 Cir. 1972). Summary eviction procedure is not appropriate to try disputed title to property but is designed for situations where the possessor has no semblance of claim to title or possession. Clements v. Billiot, 52 So.2d 268 (La.App. 1 Cir. 1951). However, defendants have not objected to plaintiff’s use of this procedure and the evidence as to the ownership of the property was therefore admissible. Wooten v. Jones, 200 La. 333, 8 So.2d 46 (1942). After remand, Wooten was tried on the merits as to fraud or misrepresentation in the sale of the property. See Wooten v. Jones, 205 La. 956, 18 So.2d 581 (1944).

The second issue is whether Esther Luquette has a right of habitation. A discontinuous servitude, which requires the act of man to be exercised, such as the right of habitation, can be established only by title, which is not present here. LSA-C.C. arts. 727, 766. Lovecchio v. Graffagnini, 90 So.2d 694 (La.App.Orl.1956), writ denied.

The third issue is whether the trial court correctly determined that plaintiff foreman is the owner of the property by virtue of the deed from Albert Luquette. The deed itself, although purporting to be an authentic act, was not executed in compliance with LSA-C.C. art. 2234 which states in pertinent part that:

“The authentic act, as relates to contracts, is that which has been executed before a notary public or other officer authorized to execute such functions, in presence of two witnesses, . . . ”

Here, there was no objection made to the parol evidence showing that the deed was not executed by either Luquette or Foreman in the presence of two witnesses. In view of the allegations of fraud by defendants, parol evidence was admissible to establish that the deed was not an authentic act. American B. & T. Co. In Monroe v. Carson Homes, Inc., 316 So.2d 732 (La., 1975). Since not an authentic act, the deed is not self proving under LSA-C.C. art. 2236.

The trial court found the instrument valid, apparently as an act under private signature, after a factual determination that Luquette had in fact signed the deed to Foreman. Albert Luquette even admitted that the signature on the instrument might be his.

The trial court concluded that fraud was not proven, and thus, inferentially, that Foreman is the owner of the property. There is no manifest error in the conclusion that Foreman is the owner.

Therefore, the judgment of the trial court herein making the rule to evict absolute is affirmed. All costs are assessed against appellants.

AFFIRMED.

      . LSA-C.C. art. 727:
      “Art. 727. Servitudes are either continuous or discontinuous.
      Continuous servitudes are those whose use is or may be continual without the act of man.
      Such are aqueducts, drain, view and the like.
      Discontinuous servitudes are such as need the act of man to be exercised.
      Such are the rights of passage, of drawing water, pasture and the like.”

      . LSA-C.C. art. 766:
      “Art. 766. Continuous nonapparent servi-tudes, and discontinuous servitudes, whether apparent or not, can be established only by a title.
      Immemorial possession itself is not sufficient to acquire them.
      Immemorial possession is that of which no man living has seen the beginning, and the existence of which he has learned from his elders.”

      . LSA-C.C. art. 2236:
      “The authentic act is full proof of the agreement contained in it, against the contracting parties and their heirs or assigns, unless it be declared and proved a forgery.”


text:
    James T. COPELLAR, Jr., Plaintiff-Appellee, v. Robert G. YOUNT and David Yount, Defendants-Appellants.
    No. 5861.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Gahagan & Gahagan by R. E. Gahagan, Natchitoches, for defendants-appellants.
    Kelly, Seaman & Ware by Robert L. Sal-im, Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   STOKER, Judge.

This is an appeal by the defendants in a possessory action. The trial court granted judgment to plaintiff, James T. Copellar, Jr., decreeing that he be recognized as the legal possessor of a tract of land “described as the Northeast Quarter (NEVi) of the Southeast Quarter (SEVl) of Section 20, Township 11 North, Range 8 West, Natchi-toches Parish, Louisiana containing 40 acres more or less.”

As we read the briefs of appellants, Robert G. Yount and David Yount, their assignment of error is directed to both the findings of fact of the trial judge and his application of law. As will be explained, we do not reach any of these issues.

The disturbance complained of by plaintiff-appellee is that defendants constructed a fence across property which had been in the possession of plaintiff without interruption for one year. The evidence discloses that the only possession exercised by plaintiff was the cutting of trees on the property.

At the outset, we note that serious problems arise from the face of the trial court’s judgment which require a remand of this ease for further proceedings. Article 2089 of the Louisiana Code of Civil Procedure provides:

“All judgments and decrees which affect title to immovable property shall describe with particularity the immovable property affected.”

While the judgment contains a typical or standard legal description, our reading of the record convinces us that it does not describe the property in dispute in the sense that it can actually be located. In fact, it may not even lie in Section 20 at all. The transcript of the testimony reveals that the area in question and the property lines in question have never been surveyed. While no survey has been made, the record is clear to the effect that possibly as few as three acres, and at the most nine acres, are involved. The record also suggests that it is quite possible that the acreage in question lies in Section 64 rather than Section 20. It may actually be partly in both sections.

A reading of the property description contained in the judgment (which is the same as that contained in the petition) would lead one to assume that a regular or standard “government” quarter-quarter section of land was involved. If this was so, it would represent forty acres in a square of standard measurements and the corner angles would each be 90 degree angles. However, we gather the parties agree that the property was triangular in shape. It appears to be agreed that Section 64 is an irregularly shaped section lying between parallel lines which run diagonally, that is, northeasterly and southwesterly. The northwesterly side of Section 64 may very well cut across the southeast corner of the NEV4 of the SEVi of Section 20. Therefore, it is possible that Section 20 is not a regular quarter-quarter section at all. The testimony of the witnesses in this case makes references to directions, extent of land and places which have no meaning insofar as relating the testimony to any landmarks which would permit the drafting of a legal description. As noted above, no survey has been made of either the specific acreage in dispute or any of the surrounding area. The only evidence in the record consists of photographs but the photographs themselves indicate little. The testimony concerning the photographs does not meaningfully communicate any information from which a true legal description might be confected.

As so often happens with parties familiar with a parcel of land in question, the parties who testified in this case appeared to understand one another and no doubt the court and counsel did. However, their testimony as it is recorded does not permit the fixing of boundaries, corners, physical monuments or other landmarks necessary to frame an accurate legal description of the tract affected by the trial court’s judgment. In short, the parties may know where the disputed land is and where its boundaries are, but no title examiner or surveyor could locate it from the transcript of the trial testimony, even with the aid of the photographic exhibits.

In view of the above, we are of the opinion that the description contained in the trial court’s judgment does not properly or adequately describe “the immovable property affected”. Therefore, the judgment does not comply with Article 2089 of the Louisiana Code of Civil Procedure. We conclude that the interest of justice requires that we remand this case to the trial court for further proceedings to permit a new trial for the purpose of receiving additional evidence such as land surveys and plats in order that the ruling of the court may include a more adequate property description. We do not mean to suggest or require that section lines be located. Whether the area in dispute should ultimately prove to be located in Section 20, Section 64 or both, may prove immaterial as a requirement for framing a legal description. However, it is necessary that the disputed tract be described with references to landmarks such as roads, benchmarks, or other locatable monuments or a survey commencing at some established point. We will note, however, that from the standpoint of pleading, the petition is limited to land located within Section 20, Township 11 North, Range 8 West, Natchitoches Parish.

For the reasons assigned, the judgment appealed is reversed and set aside. This case is remanded to the district court for a new trial on all issues and for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against the plaintiff. Assessment of costs in the district court must await a final determination here.

REVERSED AND REMANDED.

      . In this connection see the discussion concerning the necessity of visible boundaries and the necessity of “reliable evidence in the record on which an accurate description can be based” in the Louisiana Supreme Court case of William T. Burton Industries, Inc. v. Wellman, 343 So.2d 996 (decided February 28, 1977). This was a boundary action which was remanded to the trial court for the appointment of a survey- or to survey the property in question despite the fact that the Supreme Court was satisfied defendant had shown possession beyond his title under Article 852 of the Louisiana Civil Code and despite the fact that a visible boundary was established by the evidence.


author: HEARD, Judge.

text:
    Bessie RICHARD et al., Plaintiffs-Appellants, v. ST. LANDRY PARISH SCHOOL BOARD et al., Defendants-Appellees.
    No. 5864.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Guillory, McGee & Mayeux by Donald L. Mayeux, Eunice, for plaintiffs-appellants.
    Young & Burson by I. Jackson Burson, Jr., Eunice, for defendants-appellees.
    Before GUIDRY, FORET and HEARD, JJ.
   HEARD, Judge.

This is a personal injury suit brought by Bessie Richard in her own behalf and as natural tutrix of her minor child, John Gary Richard, who was injured while a third grade student at North Elementary School in Opelousas by receiving a cut on the eye with a small paring knife in the hands of a fellow pupil, Larry Jolivette.

On March 15, 1971, John Gary Richard, an eight-year-old third grader at North Elementary School, Opelousas, Louisiana remained after class, at the request of the teacher to help tidy up the classroom. Two other boys, James Antoine and Larry Joli-vette, also remained at school. The teacher, Mrs. Martel, after school, went to her home, leaving the boys unsupervised.

In the course of cleaning the classroom, Larry Jolivette, although forbidden by his teacher, went through her desk drawers and found a small paring knife used by the teacher to sharpen crayons. He then called Gary Richard to come see the knife. As Gary Richard turned to see the knife, he was cut on the left eyelid.

Gary went to two doctors, Dr. G. W. Prather and Dr. Merrick Wyble, who found that it was a minor injury that had not injured the eyeball.

The plaintiff brought suit against the St. Landry Parish School Board, Lee Jolivette, father of Larry Jolivette and the teacher, Mrs. Laura Talbot Martel.

The trial court found that the teacher was not negligent in leaving the knife in her desk or in leaving the children unsupervised, and denied plaintiff recovery from which judgment the plaintiff has perfected a devolutive appeal.

The plaintiff-appellant states that the trial court erred in failing to find that Laura Martel and St. Landry Parish School Board were negligent by leaving the three boys unsupervised in the classroom and, by Laura Martel leaving a knife in her unlocked desk drawer, her negligence being the proximate cause of the accident.

The defendants-appellees contend that the appeal should be dismissed for the reason that plaintiff failed to perfect his appeal within the time limit provided for in C.C.P. articles 2087 and 1974. The contention is invalid as the delay for applying for a new trial under C.C.P. article 1974 is seven days and not three days as defendants contend.

In support of the contention of the plaintiff he cites the following cases: Station v. Travelers Insurance Company, 292 So.2d 289 (La.App. 1 Cir. 1974); McDonald v. Terrebonne Parish School Board, 253 So.2d 558 (La.App. 1 Cir. 1971), writ denied, 260 La. 128, 255 So.2d 353 (La.App. 1 Cir. 1971); Simmons v. Beauregard Parish School Board, 315 So.2d 883 (La.App. 3 Cir. 1975); Schnell v. Travelers Insurance Company, 264 So.2d 346 (La.App. 4 Cir. 1972); Nash v. Rapides Parish School Board, 188 So.2d 508 (La.App. 3 Cir. 1966).

In Nash v. Rapides Parish School Board, 188 So.2d 508 (La.App. 3 Cir. 1966), a child was struck in the eye by another child while waiting for the bus. The parents charged'that the school board was negligent for failing to provide adequate supervision. The court held that the school board was not liable as there was no proof of a causal connection between the lack of supervision and the accident. We feel that the same rule applies in this case.

Plaintiff contends that it was negligence to leave an inherently dangerous instrument such as a knife in the unlocked desk drawer. He cites Station v. Travelers Insurance Company, 292 So.2d 289 (La.App. 1 Cir. 1974), in which a teacher was held liable for failing to warn two students not to light an alcohol burner that they were working with when it exploded, blinding one of them. Plaintiff claims the knife, like the alcohol burner, is inherently dangerous and should not be used without supervision. We feel that this case is inappo-site to the present case for, the reasons that the alcohol burner was placed in the hands of the students by the teacher who left them unsupervised. In the present case, the paring knife was in a desk drawer and the students were forbidden to go near the desk. The teacher had not placed it in the control of the students and left them unsupervised. Further, as pointed out by the trial court, the same injury could have occurred had the children used a pencil or wooden pointer in the same manner they used the knife.

In Simmons v. Beauregard Parish School Board, 315 So.2d 883 (La.App. 3 Cir. 1975), this court held the school board liable when a child was injured when the firecracker powder he was using exploded and injured him. The court found again that in encouraging the child to build the project without checking to see what materials were being used in its construction, the teacher involved was negligent.

In McDonald v. Terrebonne Parish School Board, 253 So.2d 558, the teacher left the classroom unsupervised when she went to the teacher’s lounge to get coffee. While she was gone two boys engaged in a scuffle and one threw a broom at the other which tragically struck the boy in the eye in such a manner as to cause the loss of its sight.

The court in failing to find the teacher negligent in leaving the class unsupervised stated: “The fact that each student is not personally supervised every moment of each school day does not constitute fault on the part of the School Board or its employees.” Bourgeois v. Indemnity Insurance Co. of North America, 60 So.2d 718 (Orl.La.App.1952); see also Partin v. Vernon Parish School Board, 343 So.2d 417 (La.App. 3 Cir. 1977).

Again in the present case the knife involved was not placed in the hands of the child by his teacher.

The trial court found the defendants free of negligence. We find no manifest error in his findings.

All costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


text:
    Jessie R. JEFFERSON, Plaintiff-Appellant, v. S. S. KRESGE COMPANY d/b/a K-Mart, Defendant-Appellee.
    No. 5869.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      Gravel, Roy & Burnes by Dee D. Drell, Alexandria, for plaintiff-appellant.
    Gold, Hall, Hammill & Little by Eugene J. Sues, Alexandria, for defendant-appellee.
    Before GUIDRY, FORET and HEARD, JJ.
   HEARD, Judge.

Plaintiff, Jessie R. Jefferson, brought suit against S. S. Kresge Company, doing business as K-Mart Discount Store, seeking damages for malicious prosecution of the plaintiff by the defendant arising from a shoplifting charge of which she was acquitted. The trial court rejected the demand of the plaintiff from which the plaintiff appeals. We reverse the judgment of the District Court and award damages.

On September 24, 1975, plaintiff went to K-Mart, owned by defendant, with her mother and sister. After they entered the store, they parted company, and plaintiff went to the infant’s department to purchase some disposable diapers. The diapers were displayed on a counter and several packages were broken open, with some of the diapers laying about the counter. As the plaintiff approached the counter, she was being observed by the defendant store’s guard, Mr. Greene, from his office located above the display floor. The plaintiff picked up an open package of disposable diapers and put it in her shopping cart. Two diapers had been laying near the mouth of the package, and plaintiff picked them up and put them into her package, where she assumed they belonged. She then took a twister from another package and used it to close her package.

Plaintiff then proceeded to the check-out counter and asked the checker to count the diapers to ascertain if the bag contained the right amount. The checker did not count the diapers, but told plaintiff if the package did not contain 40 diapers she could return it and get a refund. Plaintiff paid for the diapers and left the store. The security guard followed her out of the store and requested that she return to the store and his office. When plaintiff reached his office, the guard accused her of shoplifting two disposable diapers and a heated discussion between them followed. An inspection of the bag of diapers revealed that the bag contained forty-two diapers instead of the normal forty. The plaintiff insisted that the guard discuss the matter with the checker, which he did, and discovered that the checker had a discussion concerning the quantity of diapers contained in the bag. The guard then released the plaintiff to her mother, although he had been told that plaintiff was twenty-nine years old. The plaintiff was extremely upset, and stopped at the disposable diaper counter to discuss the matter. She stopped again at the front of the store, talking extremely loud and very much upset. At that point, the security guard again approached her, ordered her to return to his office, called the police, and had plaintiff arrested for shoplifting. The case was tried in Alexandria City Court, and at the conclusion of the State’s evidence, the Court directed a verdict of not guilty.

Plaintiff contends that defendant had no probable cause for arrest, that defendant acted with malice, and asks that appropriate damages be assessed against the defendant. Actual attorney’s fees and expenses incurred amounted to three hundred twenty five and no/100 ($325.00) dollars plus nine and no/100 ($9.00) dollars for loss of work, as well as uncomputed traveling expenses.

Plaintiff suffered two stops by the security guard, arrest, booking, posting of bond and trial in City Court. Her family knew of her arrest, and her arraignment in City Court was published in the newspaper, making it necessary for her to explain the situation to those who asked.

In order to recover damages for malicious prosecution of a criminal or civil proceeding, the plaintiff must prove: (1) termination of the proceeding in favor of the plaintiff; (2) lack of probable cause; and (3) malice on the part of the defendant. Cormier v. Blake, 198 So.2d 139 (La.App. 3 Cir. 1967); Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2 Cir. 1975); Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975). The existence of probable cause does not depend merely upon the actual statement of the facts, but also upon the defendant’s honest belief in making the charge against the plaintiff. Carter v. Catfish Cabin, supra. Malice exists when a charge is made with knowledge that it is false, or with reckless disregard as to whether it is false or not. Generally, where lack of probable cause can be shown, malice is presumed. Brown v. Vittur, 47 La.Ann. 607, 17 So. 193 (1895); Robinson v. Rhodes, 300 So.2d 249, 251 (La.App. 2 Cir. 1974). The courts have held that it is not every mistake made in defending one’s self against crime that is actionable, but only such mistakes as cannot be reasonably justified by the surrounding circumstances. Whittington v. Gibson Discount Center, 296 So.2d 375, 378 (La.App. 2 Cir. 1975); Carter v. Catfish Cabin, supra.

Plaintiff in this case admits that her action in stuffing the two diapers into the bag gave defendant’s security guard probable cause to stop her the first time. However, she argues that the probable cause was vitiated when the checker informed the guard that plaintiff had requested that the diapers be counted to ascertain the exact amount. Thus, his action in having the plaintiff arrested after having released her was done without probable cause. The First Circuit has recognized that intervening events may vitiate probable cause. In Stewart v. J. C. Penney, 267 So.2d 925 (La.App. 1st Cir. 1972), plaintiff was accused of stealing a purse. She was detained, and an inspection of the purse revealed a tag identifying it as an Avon product. The Court found at that point defendant’s probable cause disappeared, and that plaintiff’s detention beyond that point was actionable. In Hardin v. Barker’s of Monroe, Inc., 336 So.2d 1031 (La.App. 2 Cir. 1976), the Second Circuit held that once a security guard had a reasonable explanation for plaintiff’s suspicious actions, i. e. carrying shoes in his pockets, reasonable (probable) cause ceased and no immunity or legal protection against civil liability was thereafter afforded defendant. In the present case, probable cause ceased to exist when the checker informed the guard that plaintiff had attempted to get the amount of diapers ascertained, thus showing she had no intention of stealing them.

We conclude that the defendant is at fault and is obliged to repair plaintiff’s damages caused by its fault.

The only evidence as to the damages sustained by plaintiff is the special damages of three hundred twenty five and no/100 ($325.00) dollars attorney’s fees and nine and no/100 ($9.00) dollars loss of wages. She was stopped twice by the security officer; was booked at City Court and posted bond; was tried and acquitted. She was questioned by others when the fact of her arraignment in City Court was published in the newspaper. We conclude that plaintiff is entitled to recover two thousand five hundred and no/100 ($2,500.00) dollars plus specials of three hundred thirty four and no/100 ($334.00) dollars.

For the reasons assigned, the judgment of the District Court is reversed and it is hereby ordered, adjudged and decreed that there be judgment in favor of the plaintiff, Jessie R. Jefferson, and against the defendant, S. S. Kresge Company d/b/a K-Mart, in the full sum of two thousand eight hundred thirty four and no/100 ($2,834.00) dollars, with legal interest thereon from date of judicial demand until paid. All costs, including costs of appeal are assessed to defendant.

REVERSED AND RENDERED.


author: ROGERS, Judge.

text:
    Gerald R. PATRICK, Plaintiff-Appellant, v. LAKE CHARLES MUNICIPAL FIRE & POLICE CIVIL SERVICE BOARD, Defendant-Appellee.
    No. 5871.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Russell T. Tritico, Lake Charles, for plaintiff-appellant.
    Peter A. Ciambotti, Plauche, Smith & Hebert by Allen L. Smith, Jr., Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

This is an appeal by Sergeant Gerald R. Patrick from the judgment of the District Court which affirmed in part and reversed in part the decision of the Lake Charles Municipal Fire and Police Civil Service Board, which in turn upheld the action of the appointing authority’s demotion of appellant to the rank of Sergeant.

The District Judge rendered written reasons for Judgment summarizing the litigation as follows:

“This is an appeal by Sgt. Gerald R. Patrick from a decision of the Lake Charles Municipal Fire and Police Civil Service Board approving the appointing authority’s demotion of appellant to the rank of sergeant. It and the appeal to the board were taken under Article 14, Section 15.1, Subsection 31 of the Louisiana Constitution of 1921, dealing with fire and police civil service, the entire Section 15.1 of Article 14 having been continued in effect as a statute by Article 10, Section 18 of the 1974 Louisiana Constitution.

“The appellant has been a permanent employee of the Lake Charles Police Department for about 17V2 years. At the time such disciplinary action was taken he held the rank of temporary captain (permanent rank of lieutenant) and in only a short time would have been eligible for certification as a permanent captain.

“Through a memorandum dated January 6, 1976, Sgt. Patrick was notified by the Chief of Police, Jimmy L. Gwatney, that he would not certify him a captain, but instead on that day was demoting appellant to the rank of sergeant. Chief Gwatney set forth in the memo as reasons for such action the following violations of the department’s rule and regulations:

“# 1: Section 3, Paragraph 340.23 No unauthorized persons will go into the supply room or the records room. Unauthorized persons will transact business at the counter.

“You violated this rule and regulation on December 18, 1975, by allowing an unauthorized person to enter the supply room.

“# 2: Section 3, Paragraph 310.06 Cooperation Cooperation between the rank and units of the Department is essential to effective law enforcement. Therefore, all members are strictly charged with establishing and maintaining a high spirit of cooperation within the Department.

“You violated this rule and regulation on January 1, 1976, by refusing to cooperate with Captain Donald Schopen in obtaining a vehicle which was needed on his shift for effective patrol of the City.

“# 3: Section 3, Paragraph 310.24. Conduct Toward Superior and Subordinate Officers and Associates. Members and employees shall treat superior officers, subordinates and associates with respect. They shall be courteous and civil at all times in their relationships with one another when on duty and particularly in the presence of other members, employees or the public, officers shall be referred to by rank.

“You violated these rules and regulations on December 18, 1975, by criticizing Major Frank L. Landry on the replacement of a radio in LC-21 and by showing disrespect to him by referring to him as ‘that damned stupid yankee’ in front of subordinate officers and employees.

“ # 4: Section 3, Paragraph 310.06 Cooperation Cooperation between the ranks and units of the Department is essential to effective law enforcement. Therefore, all members are strictly charged with establishing and maintaining a high spirit of cooperation within the Department.

“You violated this regulation by refusing to honor a request from Officer Hancel Hedrick for a unit to follow up a hit and run investigation knowing full well that you had a unit available for his use.

“This appeal involves two principal issues: (1) Did the letter of demotion sent by the appointing authority sufficiently describe the misconduct complained of? (2) Did appellant’s acts as shown in the record constitute legal cause for demotion?

“I.

“Article 14, Section 15.1, Sub Section 30(d) provides:

“ ‘In every case of corrective or disciplinary action taken against a regular employee of the classified service, the appointing authority shall furnish the employee and the board a statement in writing of the action and the complete reasons therefor.’

“In regard to the adequacy of the written notice of dismissal given a police officer in a similar proceedings, the Louisiana Supreme Court, in Marchiafava vs. Baton Rouge F. & P.S. Bd., 233 La. 17, 96 So.2d 26 (1957), quoted the following from State, ex rel. Perez vs. Whitaker, 116 La. 947, 41 So. 218, 220:

• “ ‘The relator complains of the charges and specifications as not sufficiently indicative of the offense, also as not being sufficiently definite as to date.

“ ‘It is well settled that these charges and specifications need not be drawn with the precision of an indictment.

“ ‘Nothing in the proceedings leads us to infer that the relator was in the least taken by surprise, or that he was made to answer for an offense which had not been sufficiently set forth to let him know in what consisted the accusation.’

“However, in Hays vs. Louisiana Wildlife & Fisheries Commission, 243 La. 278, 143 So.2d 71, 74 (1962), which involved a somewhat similar constitutional provision applicable to State Civil Service, the Court declared:

“ ‘The requirement of this rule that detailed reasons be stated for the action taken plainly comprehends a fair and clear statement of the misconduct of the employee including, whenever pertinent, time, dates, places and amounts, if, as in this case, monies are alleged to have been unjustly secured and misappropriated. This is necessarily so, since, under Section 15(N)(l)(a) of Article 14 of the Constitution, the employee appealing from the disciplinary action has the burden of disproving the facts stated in the letter of dismissal as grounds for the employing authority’s action. Unless, then, the facts are detailed, as required by Rule 12.3, the employee would have little chance on appeal to carry the burden, even though he might have a valid defense to the action.’

“In subsequent decisions our Courts of appeal have consistently followed Hays on the degree of specificity necessary to apprise the disciplined employee of the nature of the charges against him. Robbins vs. New Orleans Public Library, 208 So.2d 25 (La.App. 4th Cir. 1968); Hoover vs. Department of Finance, 283 So.2d 298 (La.App. 4th Cir. 1973); Major vs. Louisiana Department of Highways, 333 So.2d 316 (La.App. 1st Cir. 1976).

“Although the matter is not free of all doubt, particularly in this case since it appears that the appellant was actually apprised of the particulars of the charges and the witnesses against him prior to the board hearing, this court believes that the rule of law quoted above from Hays is applicable to disciplinary action involving the fire and police as well as employees in state and municipal civil service.

“Applying Hays to the case at hand, the court concludes that the first charge against the appellant in the letter of demotion fails to meet the required degree of specificity. Although Sgt. Patrick was given the rule and regulation he allegedly violated (Section 3, Paragraph 340.23) and the date of such violation, he was not given the name of the unauthorized person he allowed in the supply room. The name of such person would seem to be essential for the appellant to defend the charge against him.

“The fourth charge also fails to meet the Hays requirements. Again the appellant was given the rule and regulation claimed to have been violated (Section 3, Paragraph 310.06), the person involved and the action which caused the charge, but the appellant was not given the date the violation allegedly occurred. The date would be necessary to allow the appellant to prepare his defense to the charge lodged against him.

“The second charge sets out the particular rule and regulation violated (Section 3, Paragraph 310.6), the date of the violation (January 1, 1976), the person involved (Captain Donald Schopen), and the action of the appellant which constituted the violation (namely, refusing to cooperate with Captain Schopen in obtaining a vehicle necessary for his shift). Thus, it is sufficient.

“The third charge also meets the required degree of specificity as set forth in Hays. It specifically mentioned the rule and regulation violation (Section 3, Paragraph 310.24 and Paragraph 310.46), the date such occurred (December 18,1975), the person criticized (Major Frank L. Landry), and the comment made by the appellant (‘that damned stupid yankee’).

“In summary, although two of the charges failed to meet the specificity required by law, the other two charges adequately notified appellant of the reasons for the disciplinary action of the appointing authority.

“II.

“The second issue is whether or not the appellant’s actions with respect to the second and third charges constituted legal cause for demotion.

“Article 14, Section 15.1, Subsection 31 of the 1921 Louisiana Constitution provides as follows in regard to appeals of this nature to the court:

“ ‘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 Section.’

“Construing a similar constitutional provision relating to state civil service, our supreme court in Leggett vs. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962) stated:

“ ‘Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service. Of course there must be a real and substantial relation between the conduct of the employee and the efficient operation of the public service; otherwise legal cause is not present, and any disciplinary action by the commission is arbitrary and capricious.

“ ‘It is the duty and function of the commission to determine from the facts whether there exists a substantial relation between the employee’s conduct and the efficient operation of the public service, and it is well settled in the jurisprudence that in civil service cases if there is any evidence before the commission showing that the employee’s conduct is prejudicial to the service, its ruling will not be disturbed.’

“Later cases following Leggett are: Foster vs. Department of Public Welfare, 159 So.2d 515 (La.App. 1st Cir. 1963); Johnson vs. State Parks and Recreation Commission, 193 [198] So.2d 180 (La.App. 1st Cir. 1967); Robbins vs. New Orleans Public Library, 208 So.2d 25 (La.App. 4th Cir. 1968); Hoover vs. Department of Finance, 283 So.2d 298 (La.App. 4th Cir. 1973).

“From its review of the transcript this court is convinced there is ample evidence to sustain the board’s decision that appellant committed the violations set forth in charges two and three. The record also shows that there is a real and substantial relationship between the conduct of the appellant and the efficient operation of the Lake Charles Police Department and the efficiency of the public service has been impaired thereby. In conclusion, the court finds that the decision of rthe board was made in good faith and for legal cause, and it will be affirmed.

“A formal decree in accordance with these reasons for judgment will be read and signed upon presentation.

“Lake Charles, Louisiana, October 15, 1976.”

The appellant urges the following specification of errors:

1. The trial judge erred in concluding that there was a real and substantial relationship between the conduct of the appellant and the efficient operation of the Lake Charles Police Department and that the efficiency of that department had been impaired;

2. The trial court erred in failing to commute or reduce the penalty imposed by the Municipal Fire and Police and Civil Service Board in view of its holding that only two of the four charges were valid, resulting in a penalty too harsh for the violations.

We agree with the trial court that there is sufficient evidence in the record to sustain the board’s decision that appellant committed the violations set forth in charges two and three. We likewise agree that there is nothing in the record which would even suggest that the board acted other than in the utmost good faith. The crucial issue is whether or not the conduct of Sergeant Patrick impaired the efficiency of the public service.

There is evidence in the record from which the board could conclude that a substantial relationship existed between Sergeant Patrick’s conduct and the efficient operation of the Lake Charles Police Department, although we admit that such evidence is not overwhelming. Be that as it may, in matters of this kind we are compelled to follow the guidelines enunciated by the Louisiana Supreme Court in Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962), to the effect that if there is any evidence before the commission or board from which a conclusion can be drawn that the employee’s conduct is prejudicial to the service, the commission’s ruling should not be disturbed. (See also Bland v. City of Houma, 264 So.2d 729 (La.App. 1st Cir. 1972), writs refused Sept. 29, 1972, and Milam v. Municipal Fire and Police Civil Service Board of DeRidder, 253 La. 218, 217 So.2d 377 (1968). Accordingly, we find, as did the trial court, that the board acted in good faith and for legal cause.

With regard to appellant’s second specification of error, i.e., that the penalty imposed should be reduced considering that only two of the four charges were valid, suffice it to say that in the imposition of penalties we are not permitted to substitute our judgment for that of the board. Marchiafava v. Baton Rouge Fire and Police Civil Service Board, 233 La. 17, 96 So.2d 26 (1957).

The judgment of the trial court is affirmed. All costs are assessed against the appellant.

AFFIRMED.


author: GUIDRY, Judge.

text:
    James Henry WILLIAMS, Plaintiff-Appellee, v. RING AROUND PRODUCTS, INC., Defendant-Appellant.
    No. 5883.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.

      Whitehead & McCoy by Charles R. Whitehead, Jr., Natchitoches, for defendant-appellant.
    John G. Williams, Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

James Henry Williams, a Natchitoches Parish farmer, instituted this suit against Ring Around Products, Inc. (hereinafter referred to as Ring Around) to recover planting costs, loss of profits, and attorneys fees as a result of his planting alleged defective cotton seed processed by the defendant. Ring Around, an Alabama corporation, doing business in Louisiana, sells various types of agricultural seeds. After trial on the merits the trial judge rendered judgment in favor of plaintiff, awarding planting expenses of $2,249.16 and attorney fees of I1500.00. Defendant Ring Around appeals.

The record reflects that on April 7, 1975 plaintiff through his farm manager and agent, Ralph C. Ingram, Jr., purchased eighty 50 lb. sacks of Delta Pine Land 45-A acid delinted cotton seed. The seed was purchased from Valley Farmer’s Co-op of Natchitoches. Jarred Dixon, manager of Valley Farmer’s Co-op, stated that he authorized shipment of the cotton seed direct to plaintiff from its vendor, Southern Farmers’ Association of Little Rock, Arkansas. The Southern Farmers’ Association had received the cotton seed directly from Ring Around, although a wholesale distributor, Moss Seed Company of Little Rock actually sold the seed to the Southern Farmers’ Association. Ring Around was the processor of the particular cotton seed lot which was sold to the plaintiff.

Before further discussion of the facts in the instant matter we here note that the sale and shipment of seed is regulated under the Federal Seed Act Section 1-420, 7 U.S.C.A. Sections 1551-1610 and LSA-R.S. 3:1431-3:1448. To summarize the Louisiana provisions it is provided that each container of agricultural seed sold in Louisiana for planting purposes shall bear a conspicuous label which plainly sets forth the name and variety of the seeds sold; the place where grown; the lot identification number; the percentage by weight of inert matter; and the percentage of germination. The Louisiana Seed Commission is authorized to administer these rules and regulations as well as prescribe rules pertaining to the methods of sampling, inspecting, and making analysis tests and examinations of all seeds.

The tag or label which was attached to the seed purchased by the plaintiff complied with the requirements above referred to. In particular the tag showed that the cotton seed, Delta Pine Land 45-A, lot number 59087501 had been tested on March 25, 1975 by Ring Around and found to have 70% germination. The cotton seed was grown and inspected in Mississippi.

Plaintiff after receipt of the particular seed on April 7,1975, stored the same in the center section of a large metal building located on his farm. This building which had a concrete floor, also stored agricultural chemicals and plaintiff’s primary variety of cotton seed, Delta Pine Land — 16. Ralph Ingram testified that he had stored seed in this building before and had never experienced any problems with seed deterioration. Plaintiff corroborated this testimony.

Both plaintiff and Ingram testified that in May of 1975 the weather conditions were ideal for planting cotton. The weather was warm with rain showers 3-4 days a week. Plaintiff began planting the DPL-45-A on May 12, 1975. The seed was planted on three separate tracts amounting to 165 acres. The 55 acre Kaffie tract was planted first, the 20 acre Old River tract was planted on May 15, 1975 and the 90 acre I Hope tract was planted on May 21, 1975. The remainder of plaintiff’s 2300 acre farm had been planted earlier with DPL-16 seed.

Ingram testified that shortly after the planting of the DPL-45-A seed it became apparent he was going to have germination problems. This was later confirmed when the DPL-16 planted on adjacent tracts to the DPL-45-A produced a beautiful stand of cotton whereas the DPL-45-A produced no stand at all. As a result of this situation plaintiff contacted Jarred Dixon of the Valley Farmer’s Co-op who came out to plaintiff’s farm to view the cotton. Dixon likewise found no stand on the DPL-45-A, although the cotton alongside, the DPL-16 had a perfect stand. Dixon received one other complaint about the DPL-45-A in Natchitoches Parish, but he could not remember if the seed was from the same lot number.

Plaintiff returned to the Farmer’s Co-op 38 sacks of DPL-45-A he had remaining and was given full credit on the entire purchase price. Plaintiff, thereafter replanted the 165 acres with one year old DPL-45-A cotton seed. Plaintiff estimated that the cost of the replanting was $2,249.16.

As a consequence of the germination problems plaintiff was experiencing the chief inspector for the Louisiana Department of Agriculture, Robert Willett, was called in to take a seed sample of the DPL-45-A. Willett, on May 14, 1975 took a sampling of the DPL-45-A at plaintiff’s farm. Subsequently, this sample was sent to the State’s seed analyst, Delmar Johnson. Plaintiff’s samples were received and logged by Johnson on May 19, 1975 and the test was completed on June 2, 1975. The analysis showed that the sample seed from plaintiff had a 25% germination rate. As aforestated, Ring Around certified this same seed to have a 70% germination rate. We observe at this point that the evidence clearly indicates that a 70% germination is low quality seed and that usually certification of seed by state agencies requires 80% germination. However, in this particular year cotton seed was scarce and the minimum requirements for certification were relaxed to 70%. Any seed below 70% germination could not be certified.

The defendant introduced as a witness Paul Johnson, a registered seed analyst for Ring Around Products. Paul Johnson testified that on March 17, 1975 following their receipt of the unprocessed cotton seed from Mississippi he performed a live seed test on lot number 59087501. The seed was in a raw state. The results of that examination showed a 49% germination. Thereafter the seed lot was processed, whereby all the immature seeds, mash seeds and oblong and odd seeds were cleaned from the lot. The processing of cotton seed takes out all the lighter seeds which tend to be dead or of low germination rate. After completion of the processing another test was performed by Johnson and this time the seed showed a germination of 70% and the lot was certified accordingly. Ring Around also sent samples of this particular lot to an indepen-dant seed analyst, Hulsey Seed Laboratory in Atlanta, Georgia. C. J. Hulsey, a registered seed technologist, performed seed tests of this sample on April 2, 1975 and April 11, 1975, which resulted in a showing of 71% germination and 77% germination, respectively. A retest performed by Hulsey on June 28, 1975 showed a germination of 70%. Hulsey performed these tests on the same sample of seed which had been furnished by Ring Around. Hulsey stated, however, that it was possible there was a lack of uniformity in the particular seed lot involved. Hulsey testified that cotton seed should usually hold up for nine months, except that during the summer months, when the temperature and humidity is high, the seed will deteriorate more rapidly.

Defendant contends that the trial court committed error in concluding that the cotton seed processed by Ring Around was defective at the time of plaintiff’s purchase. Defendant alternatively contends that even if the seed was defective its liability to plaintiff is limited to a return of the purchase price pursuant to the limitation of warranty under which the seed was sold.

Our review of the evidence convinces us that, despite the results of the tests made by defendant, there was a reasonable basis for the trial court’s finding that the cotton seed DPL-45-A which defendant processed, and which plaintiff purchased, was defective.

The remaining issue concerns whether plaintiff purchased the DPL-45-A seed under a limited warranty and if so whether the alleged limitation of warranty agreement restricts plaintiff’s recovery to a return of the purchase price.

In all sales in Louisiana there is an implied warranty that the object sold is fit for the purpose intended which warranty can be avoided only by express and explicit waiver. LSA-C.C. arts. 2520, 2541 and 2542; A. A. Gilbert Pipe & Supply Company v. Cassard, 240 La. 180, 121 So.2d 736 (1960); California Chemical Company v. Lovett, 204 So.2d 633 (La.App.3rd Cir. 1967).

The alleged limitation of warranty agreement involved herein reads as follows:

“The seller warrants to the extent of the purchase price that seeds or bulbs are sold as described on the label or container, within recognized tolerances. Seller gives no other or further warranty, express or implied. No liability hereunder shall be assessed unless the buyer or user reports to the warrantor within a reasonable period after discovery (not to exceed 30 days) any condition that might lead to a complaint.” (Emphasis ours)

Defendant alleged that the quoted limitation of warranty was either printed on or attached to each sack of seed sold to plaintiff.

The trial court found the seed plaintiff purchased defective and awarded plaintiff damages for the cost of replanting and attorney fees. In his reasons for judgment the trial judge made no finding or reference whatever to a limited warranty agreement between the parties. Presumably, the trial court in awarding the damages prayed for by plaintiff, either found that there was no limitation of warranty agreement applicable to the sale or that the alleged waiver of warranty was ineffective. In this latter connection see the recent case of Hendricks v. Horseless Carriage, Inc. et al., 332 So.2d 892 (La.App.2nd Cir. 1976) and authorities therein cited.

We conclude that in the instant case the evidence falls short of establishing by a reasonable preponderance of the evidence that the warranty agreement was affixed to the sacks of seed sold to plaintiff.

For this reason we deem it unnecessary to determine whether the alleged waiver of warranty was ineffective. Specifically, we do not consider it necessary to determine whether the elements set forth in the cited case must be present in order to give effect to a waiver of warranty agreement regardless of the atypical nature of the product sold.

Plaintiff unequivocally testified that there was no limitation of warranty agreement on the sacks of seed which he purchased. There was no mention whatever of a limitation of warranty on the sales receipt delivered to him at the time of sale by the Valley Farmers Co-op. The sacks which contained the seed were not available at the time of trial. Plaintiff’s farm manager, Ralph Ingram, testified that he did not see a limitation of warranty agreement on any of the sacks of seed which were planted. Countering this is the testimony of Mr. Dru Smith, the production and processing manager of Ring Around, to the effect that the quoted limitation of warranty is customarily used throughout the seed industry and that such an agreement or notice is put on every bag of seed processed by defendant. All of the other persons who had any direct contact with the specific sacks of seed in question were unable to state whether the agreement or notice was affixed thereon. Considering the above we conclude that the defendant has failed to establish by a reasonable preponderance of the evidence that the limitation of warranty agreement above quoted was applicable to the instant sale.

For the above and foregoing reasons the judgment appealed from is affirmed. All costs of these proceedings on appeal are to be borne by the appellant.

AFFIRMED.

      . At the trial of this matter plaintiff abandoned his claim for lost profits.


author: DOMENGEAUX, Judge.

text:
    Michael J. LAWTON, d/b/a Lawton Forest Products, Plaintiff-Appellee, v. LOUISIANA PACIFIC CORPORATION, Defendant-Appellant.
    No. 5886.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 1977.
    Edgar Perkins, Jr., DeQuincy, for defendant-appellant.

      Perrell Fuselier, Oakdale, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and ROGERS, JJ.
   DOMENGEAUX, Judge.

This is a suit for specific performance of a written Agreement to Purchase and Sell timber by plaintiff to defendant in Evangeline Parish, which was dated July 29, 1974. The contract was conditioned upon plaintiff obtaining a right-of-way so that defendant could remove the timber to the public road. The district court held in favor of the plaintiff and granted specific performance. Defendant has taken this appeal. We affirm the judgment of the district court.

Defendant-appellant has assigned many errors in brief, but only three of those issues are substantial. First, defendant argues that the plaintiff did not properly place defendant in default as required by C.C. Arts. 1911-1913. Plaintiff wrote a letter to defendant dated February 13, 1975, demanding performance. Defendant replied in a letter, stating that it did not consider the contract valid. Therefore, it would have been useless for any further demands to be made on defendant. See Marek v. McHardy, 234 La. 841, 101 So.2d 689 (1958), which states that an anticipatory breach of contract is actionable in Louisiana. See also 20 La.Law Review 119, the Doctrine of Anticipatory Breach of Contract.

Secondly, defendant argues that plaintiff did not provide an adequate right of way as required by the contract. The trial judge perceptively pointed out that plaintiff made valiant attempts to satisfy this condition, but could never please the defendant. Plaintiff did in fact acquire the necessary rights-of-way. As was noted by the trial judge, defendant’s real reasons for trying to avoid the contract was the dramatic decline in the price of timber shortly after the contract was confected.

The defendant also disclaimed the authority of its employee, Mr. Donaldson, to enter into such a contract. However, the testimony and other evidence gives ample basis for the trial judge’s finding that Mr. Donaldson was an authorized agent of defendant to enter into the agreement.

For the foregoing reasons, we affirm the judgment of the district court, and cast costs against appellants.

AFFIRMED.

      . Appellant also complains that subsequent to the difficulties which arose between the parties, plaintiff sold the tract of land upon which the timber herein rests to a third party. However, a perusal of the deed, dated March 19, 1976, and introduced into evidence as D3, contains a special stipulation, that the appellee reserved all rights, “including rights in the timber estate, necessary to comply with a contract to sell timber of July 1974 with Louisiana Pacific Corporation, of which purchaser takes notice, whether recorded or not, and subject to which purchaser agrees to take title.”