author: STOULIG, Judge. BOUTALL, Judge, MORIAL, Judge,

text:
    Francis DUFRENE v. Anthony GUARINO et al.
    No. 7957.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Rehearing Denied Feb. 15, 1977.
    Dorothy R. Cowen and Charles R. Malo-ney, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, for Phillip Es-teve.
    Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B. Oliver.
    Caryl H. Vesy, Asst. City Atty., for Vieux Carre Commission of the City of New Orleans.

      Philip S. Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans and for the City of New Orleans, its departments, officers and employees.
    Gerald A. Stewart, Philip D. Lorio, III, Asst. City Atty., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Oregon Auto. Ins. Co., Northwestern Nat. Ins. Group, The defendants’ Committee, and Phillip Esteve.
    Benjamin E. Loup, New Orleans, for The defendants’ Committee and Anthony Guari-no.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., New Orleans and Jane M. Gisevius and Frederick J. Gi-sevius, Jr., New Orleans, for plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

This is an appeal from a judgment maintaining an exception of no cause of action. The issue presented is whether government officials or agencies charged with the duty of building inspections are liable for damages incurred in a fire in the premises where allegedly either no inspections were made or improper inspections were made and fire hazards were permitted to exist.

Plaintiff, Francis Dufrene, included as defendants several governmental officers and subdivisions of the City and State in a damage suit for injuries he sustained in a fire in the Upstairs Lounge on June 24, 1973. He alleged that hazardous conditions in the building caused the fire and prevented escape after it was discovered because public officials failed to make the inspections required by law. These defendants either pleaded the exception of no right of action on a sovereign immunity theory or no cause of action on the premise the government duty to inspect was due to the public at large and not to the plaintiff individually.

The trial court did not consider the sovereign immunity plea. Although appellant argues at length the doctrine of sovereign immunity no longer insulates the City or State from tort claims, this is not at issue. Rather, the question is the extent of governmental activity that subjects it to tort liability. In maintaining the exception of no cause of action, the trial court held liability arises only if the duty allegedly breached was owed directly to the individual and was not a function performed for the public at large.

The judgment of the trial court is affirmed. In reaching this result I differ with part of the rationale of Serpas v. Margiotta, 59 So.2d 492 (La.App.Orl.1952). In that case the Society for the Prevention of Cruelty to Animals was held guilty of actionable negligence in failing to impound a rabid dog. At 10 a.m., the SPCA received a report that a rabid dog was roaming the neighborhood. When its agent arrived on the scene at 4 p.m., he refused to capture it because one of plaintiff’s neighbors would not “get” the dog. At 6 p.m. on that same day, the dog bit a young child who subsequently died of rabies. In reversing the judgment dismissing the suit by the father of the dead boy on an exception of no cause of action, the court reasoned the breach of the ministerial duty of impounding vicious dogs was a breach of duty owed directly to the dead boy’s father. The legal premise for the result reached is quoted:

“The general rule of law referred to herein above and the exception thereto, in which category this case falls, is concisely stated in the Fourth Edition of Cooley on Torts, Section 300 at page 385.

‘The rule of official responsibility, then, appears to be this: That if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to an individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages. “The failure of a public officer to perform a public duty can constitute an individual wrong only when some person can show that in the public duty was involved also a duty to himself as an individual, and that he has suffered a special and peculiar injury by reason of its nonperformance.” ’ ”

We fully subscribe to this statement but differ with the Serpas court’s application. The duty to impound dangerous animals was entrusted to the SPCA for the public good. We cannot agree there was an individual obligation between the Society’s agent and the victim or his father. And so it is in this case. The duty to inspect the Upstairs Lounge by any of the agencies joined as defendants is imposed to protect the public generally against potential hazards. There was no duty owed individually to all future patrons of this bar.

As the written reasons of the trial judge point out, at the time of Serpas, governmental agencies were not exposed to unlimited liability. In order to proceed, a claimant first had to have the sovereign immunity of the State and/or its agencies waived by the legislature. The requirement that the City respond in damages was not a factor in the SPCA case because that "agency was insured against the torts of its employees. At the time Serpas was' decided, the court did not concern itself nor could it have been aware of the need to distinguish the municipality in relationship to the individual as opposed to its functions for the general public.

Now, with sovereign immunity a thing of the past, it is important to precisely define the limit of the State’s tort liability. Is the City liable if an injury occurs because of inadequate fire or police protection? In Riss v. City of New York, 22 N.Y.2d 579, 293 N.Y.S.2d 897, 240 N.E.2d 860 (1968), the court held the city was not liable for an injury that possibly could have been prevented by police protection. The circumstances are as compelling as those in Serpas. A young lady was blinded and scarred when an ex-suitor who had previously threatened her on several occasions hired someone to throw acid in her face. Although her prior complaints to police about danger from this source were substantiated, the court denied recovery. Its opinion pointed out:

“It is necessary immediately to distinguish those liabilities attendant upon governmental activities which have displaced or supplemented traditionally private enterprises, such as are involved in the operation of rapid transit systems, hospitals, and places of public assembly. Once sovereign immunity was abolished by statute the extension of liability on ordinary principles of tort law logically followed. To be equally distinguished are certain activities of government which provide services and facilities for the use of the public, such as highways, public buildings and the like, in the performance of which the municipality or the State may be liable under ordinary principles of tort law. The ground for liability is the provision of the services or facilities for the direct use by members of the public.
“In contrast, this case involves the provision of a governmental service to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers. (See, e.g., Messineo v. City of Amsterdam, 17 N.Y,2d 523, 267 N.Y.S.2d 905, 215 N.E.2d 163; Motyka, v. City of Amsterdam, 15 N.Y.2d 134, 138-139, 256 N.Y.S.2d 595, 596-598, 204 N.E.2d 635, 636-637; Steitz v. City of Beacon, 295 N.Y. 51, 56, 64 N.E.2d 704, 706, 163 A.L.R. 342, 18 McQuillin, Municipal Corporations [3d ed.], §§ 53.79-53.80.) The amount of protection that may be provided is limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed. * * * ”

This factor was considered by the trial judge and in his well-reasoned written opinion he stated:

“The resolution of the issue posed by these exceptions involves ultimately a policy determination properly based on a consideration of the competing benefits sought by each side. The victims point to causation in fact, their very real loss, and the general good to be accomplished by holding public authority responsible in damages for their failure to enforce protective regulations. The agencies rightfully point to the immeasurable and inevitably enormous impact on the public fisc if all agencies are held responsible. The agencies persuasively argue that to impose liability in damages for the failure to enforce regulations might compel the government, by economic necessity, to repeal such regulations and thereby deprive the public of their benefits.
if: * ¡{c * * ¡{:
“The Court is satisfied that the general allegations of these petitions do not set forth sufficient connexity between the general lack of enforcement and the occurrence, to conclude that the agencies wronged these particular claimants individually. * * * ”

The cases cited by plaintiff in which the City has been held liable for the torts of its agents all involve factual situations where there is a duty owed to the individual. For example, in Prattini v. Whorton, 326 So.2d 576 (La.App. 4th Cir. 1976), the City was held liable for the negligent act of its police officer agent in directing a bus to move in traffic when it should have been obvious that such a maneuver would cause it to collide with plaintiffs car. As plaintiff points out, directing traffic is a duty carried on for the public good; however, at this moment, the policeman also was obligated to conduct himself in such a way that he did not inflict damage to the property of the individual involved. The motorist was under the explicit direction of the police officer who had the apparent authority to exact his compliance. There was a one-to-one relationship between the city officer and the individual motorist when the injury occurred.

Duran v. City of Tucson, 20 Ariz.App. 22, 509 P.2d 1059 (1973), is similar to the case before us. There plaintiff attempted to hold the city liable for a fire inspection that did not correct the condition that ultimately caused a fire in which he was injured. The court rejected his claim against the city in this language:

“Assuming for the purpose of the motion for summary judgment, the truth of appellants’ allegations and statements in deposition, the issue narrows down to whether appellee fire department owed any duty to Mr. Duran. Abrogation of the doctrine of governmental immunity removes the defense of immunity, but does not create any new liability for a municipality. Hoffert v. Owatonna Inn Towne Motel, Inc., 293 Minn. 220, 199 N.W.2d 158 (1972). Even though the doctrine of governmental immunity has been abrogated, the plaintiff, in order to recover against the City must show the breach of a duty owed to him as an individual and not merely the breach of an obligation ówed to the general public. Massen-gill v. Yuma County, 104 Ariz. 518, 456 P.2d 376 (1969); Leger v. Kelley, 19 Conn.Sup. 167, 110 A.2d 635 (1954), aff'd, 142 Conn. 585, 116 A.2d 429 (1955); Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967); Hoffert v. Owatonna Inn Towne Motel, Inc., supra; Motyka v. City of Amsterdam, 15 N.Y.2d 134, 256 N.Y. S.2d 595, 204 N.E.2d 635 (1965).”

Plaintiff is incorrect in assuming either failure to inspect or negligent inspection created a cause of action against the City to every patron injured in a fire in the premises. Plaintiff’s position in this case is actually a reverse application of governmental immunity. The abolition of governmental immunity requires that states and municipalities be treated the same as an individual citizen. The City owed him no individual duty.

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

AFFIRMED.

BOUTALL, J., concurs with written reasons.

MORIAL, J., dissents in part.

BOUTALL, Judge,

concurring.

I agree with the result reached in this case and with the reasoning supporting that result. I concur only because I do not agree that it is necessary to overrule the case of Serpas v. Margiotta, 59 So.2d 492 (La.App. Orl.1952).

I consider that in cases of this type it will be necessary to examine each situation on a case by case basis in order to determine the nature of the duty owed. One of the controlling factors in this determination is the extent of control by the governmental agent over the actions of either another person, as in the Prattini v. Whorton case cited in the majority opinion, or over the instrumentality that does the injury complained of. In the Serpas case, supra, different statutes and ordinances were at issue than those here concerned, and additionally we have a different set of facts. In Serpas although the facts are not completely clear, it would appear that the dangerous instrumentality, that is the dog, was under the direct control of the agent, and then permitted to remain at large. Additionally I point out that the matter there involved a suit against the insurer of the individual, and there was no problem presented with a governmental agency liability per so. I would distinguish that case from the present case.

MORIAL, Judge,

dissenting.

I dissent from that part of the opinion which affirms the decision of the district court maintaining the defendants’ exceptions of no right and/or no cause of action.

      . The case was consolidated with 13 others for trial. The issue of liability is identical.

      . Raymond B. Oliver, State Fire Marshal; Office of the State Fire Marshal; the City of New Orleans; the Vieux Carre Commission; the New Orleans Fire Department; and the Louisiana Rating & Fire Prevention Bureau.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    Clarence McCLOSKEY, Sr. v. Anthony GUARINO et al.
    No. 7958.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Kronlage, Dittmann & Caswell, Albert S. Dittmann, Jr., New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Phillip Esteve.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Phillip Esteve, Oregon Auto. Ins. Co., Northwestern Nat. Ins. Group, and defendants’ Committee.
    Benjamin E. Loup, New Orleans, for Anthony Guarino and defendants’ Committee.
    Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B. Oliver.
    Philip Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans, and for the City of New Orleans, its departments, officers and employees.
    Caryl H. Vesy, Asst. City Atty., for Vieux Carre Commission of the City of New Orleans.

      Gerald A. Stewart, Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., Jane M. Gisevius and Frederick J. Gisevius, Jr., New Orleans, for plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

The judgment appealed from is affirmed. See opinion in Dufrene v. Guarino et al., La.App., 343 So.2d 1097 (1976).

AFFIRMED.

MORIAL, J., dissents for reasons assigned in No. 7957.


text:
    Jean Adams JORDAN et al. v. Anthony GUARINO and Florence Guarino et al.
    No. 7959.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., New Orleans, for Jean Adams Jordan, and others and for Plaintiffs Trial Committee.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Phillip Esteve.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Phillip Esteve, Oregon Auto. Ins. Co., Northwestern Nat. Ins. Group, and Defendants’ Committee.
    Benjamin E. Loup, New Orleans, for Anthony Guarino and Defendants’ Committee.
    Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B. Oliver.
    Philip S. Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans and for the City of New Orleans, its departments, officers and employees.
    Caryl H. Vesy, Asst. City Atty., for Vieux Carre Commission of the City of New Orleans.
    Gerald A. Stewart, Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.
    Jane M. Gisevius and Frederick J. Gisevi-us, Jr., New Orleans, for Plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

The judgment appealed from is affirmed. See opinion in Dufrene v. Guarino et al, La.App., 343 So.2d 1097 (1976).

AFFIRMED.

MORIAL, J., dissents for reasons assigned in No. 7957.


text:
    Mrs. Jane A. GOLDING et al. v. OREGON AUTOMOBILE INSURANCE COMPANY et al.
    No. 7961.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Tortomasi & Tortomasi, Bernard J. Tor-tomasi, Jr., New Orleans, for plaintiffs-ap-pellees.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Phillip Esteve.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Phillip Esteve, Oregon Auto. Ins. Co., Northwestern Nat. Ins. Group, and Defendants’ Committee.
    Benjamin E. Loup, New Orleans, for Anthony Guarino and Defendants’ Committee.
    Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B. Oliver.
    Philip S. Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans and for the City of New Orleans, its departments, officers and employees.
    Caryl H. Vesy, Asst. City Atty., for Vieux Carre Commission of the City of New Orleans.
    Gerald A. Stewart, Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., Jane M. Gisevius and Frederick J. Gisevius, Jr., New Orleans, for Plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

The judgment appealed from is affirmed. See opinion in Dufrene v. Guarino et al., La.App., 343 So.2d 1097 (1976).

AFFIRMED.

MORIAL, J., dissents for reasons assigned in No. 7957.


text:
    Robert WARREN, Individually and as Administrator of the Succession of Willie Inez Warren, et al. v. Anthony and Florence GUARINO et al.
    No. 7962.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Walter F. Gemeinhardt, New Orleans, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Phillip Esteve.

      Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Phillip Esteve, Oregon Auto. Ins. Co., Northwestern Nat. Ins. Group, and Defendants’ Committee.
    Benjamin E. Loup, New Orleans, for Anthony Guarino and Defendants’ Committee.
    Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B. Oliver.
    Philip S. Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans and for the City of New Orleans, its departments, officers and employees.
    Caryl H. Vesy, Asst. City Atty., for Vieux Carre Commission of the City of New Orleans.
    Gerald A. Stewart, Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., Jane M. Gisevius and Frederick J. Gisevius, Jr., New Orleans, for Plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

The judgment appealed from is affirmed. See opinion in Dufrene v. Guarino et al, La.App., 343 So.2d 1097 (1976).

AFFIRMED.

MORIAL, J., dissents for reasons assigned in No. 7957.


text:
    Vivian Broussard DEABATE et al. v. Anthony GUARINO and Florence Guarino et al.
    No. 7963.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Stringer & McKearan, George C. Stringer, Jr., Harahan, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Phillip Esteve.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Phillip Esteve, Oregon Auto. Ins. Co., Northwestern Nat. Ins. Group, and defendants’ Committee.
    Benjamin E. Loup, New Orleans, for Anthony Guarino and defendants’ Committee.
    Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B. Oliver.
    Philip S. Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans and for the City of New Orleans, its departments, officers and employees.
    Caryl H. Vesy, Asst. City Atty., for Vieux Carre Commission of the City of New Orleans.
    Gerald A. Stewart, Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.

      Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., Jane M. Gisevius and Frederick J. Gisevius, Jr., New Orleans, for plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

The judgment appealed from is affirmed. See opinion in Dufrene v. Guarino et al., La.App., 343 So.2d 1097 (1976).

AFFIRMED.

MORIAL, J., dissents for reasons assigned in No. 7957.


text:
    Beatrice McKuhen BURKE v. Anthony GUARINO et al.
    No. 7964.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Knight, D’Angelo & Knight, George M. Papale, Gretna, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Phillip Esteve.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Phillip Esteve, Oregon Auto. Ins. Co., Northwestern Nat. Ins. Group, and Defendants’. Committee.
    Benjamin E. Loup, New Orleans, for Anthony Guarino and Defendants’ Committee.
    Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B. Oliver.
    Philip S. Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans and for the City of New Orleans, its departments, officers and employees.
    Caryl H. Vesy, Asst. City. Atty., for Vieux Carre Commission of the City of New Orleans.
    Gerald A. Stewart, Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., Jane M. Gisevius and Frederick J. Gisevius, Jr., New Orleans, for Plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

The judgment appealed from is affirmed. See opinion in Dufrene v. Guarino et al., La.App., 343 So.2d 1097 (1976).

AFFIRMED.

MORIAL, J., dissents for reasons assigned in No. 7957.


text:
    Mrs. Ruth Bailey, wife of/and Victor V. BAILEY v. Phillip J. ESTEVE, d/b/a "The Upstairs”, et al.
    No. 7965.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., New Orleans, for Jean Adams Jordan and others and for Plaintiffs’ Trial Committee.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Phillip Esteve.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Phillip Esteve, Oregon Auto. Ins. Co., Northwestern Nat. Ins. Group, and Defendants’ Committee.
    Benjamin E. Loup, New Orleans, for Anthony Guarino and Defendants’ Committee.
    Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B. Oliver.
    Philip S. Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans and for the City of New Orleans, its departments, officers and employees.
    Caryl H. Vesy, Asst. City Atty., for Vieux Carre Commission of the City of New Orleans.
    Gerald A. Stewart, Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.
    Jane M. Gisevius and Frederick J. Gisevi-us, Jr., New Orleans, for Plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

The judgment appealed from is affirmed. See opinion in Dufrene v. Guarino et al., La.App., 343 So.2d 1097 (1976).

AFFIRMED.

MORIAL, J., dissents for reasons assigned in No. 7957.


text:
    Ada V. HARRINGTON v. Anthony GUARINO et al.
    No. 7967.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Zelden & Zelden, Max Zelden, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Phillip Esteve.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Phillip Esteve, Oregon Auto. Ins. Co., Northwestern Nat. Ins. Group, and defendants’ Committee.
    Benjamin E. Loup, New Orleans, for Anthony Guarino and defendants’ Committee.

      Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B. Oliver.
    Philip S. Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans and for the City of New Orleans, its departments, officers and employees.
    Caryl H. Vesy, Asst. City Atty., for Vieux Carre Commission of the City of New Orleans.
    Gerald A. Stewart, Philip D. Lorino, III, Asst. City Attys., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., Jane M. Gisevius and Frederick J. Gisevius, Jr., New Orleans, for plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

The judgment appealed from is affirmed. See opinion in Dufrene v. Guarino et al., La.App., 343 So.2d 1097 (1976).

AFFIRMED.

MORIAL, J., dissents for reasons assigned in No. 7957.


text:
    Beatrice MOYER v. Phillip J. ESTEVE, etc., et al.
    No. 7968.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Jane M. Gisevius and Frederick J. Gisevi-us, Jr., New Orleans, for plaintiff-appellant and plaintiffs’ Trial Committee.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Phillip Esteve.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Phillip Esteve, Oregon Auto. Ins. Co., Northwestern Nat. Ins. Group, and Defendants’ Committee.
    Benjamin E. Loup, New Orleans, for Anthony Guarino and Defendants’ Committee.
    Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B. Oliver.
    Philip S. Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans and for the City of New Orleans, its departments, officers and employees.
    Caryl H. Vesy, Asst. City Atty., for Vieux Carre Commission of the City of New Orleans.
    Gerald A. Stewart, Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.

      Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., New Orleans, for Plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

The judgment appealed from is affirmed. See opinion in Dufrene v. Guarino et al., La.App., 343 So.2d 1097 (1976).

AFFIRMED.

MORIAL, J., dissents for reasons assigned in No. 7957.


text:
    Helen Woodworth Bettis, widow of James STRATTON as Legal Guardian and next friend and on behalf of Kenny Dean Stratton v. Phillip J. ESTEVE, d/b/a "The Upstairs”, et al.
    No. 7969.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Jane M. Gisevius and Frederick J. Gisevi-us, Jr., New Orleans, for plaintiff-appellant and plaintiffs’ Trial Committee.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Phillip Esteve.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Phillip Esteve, Oregon Auto. Ins. Co., Northwestern Nat. Ins. Group, and defendants’ Committee.
    Benjamin E. Loup, New Orleans, for Anthony Guarino and defendants’ Committee.
    Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B. Oliver.
    Philip S. Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans and for the City of New Orleans, its departments, officers and employees.
    Caryl H. Vesy, Asst. City Atty., for Vieux Carre Commission of the City of New Orleans.
    Gerald A. Stewart, Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., New Orleans, for plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

The judgment appealed from is affirmed. See opinion in Dufrene v. Guarino et al., La.App., 343 So.2d 1097 (1976).

AFFIRMED.

MORIAL, J., dissents for reasons assigned in No. 7957.


text:
    Mrs. James JONES as Guardian ad litem of Murry Paul Gordon and John Donald Nixon as Guardian ad litem of Clifford Mark Gordon v. Anthony GUARINO et al.
    No. 7970.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Robert E. Winn and James Ryan, III, New Orleans, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Phillip Esteve.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Phillip Esteve, Oregon Auto. Ins. Co., Northwestern Nat. Ins. Group, and defendants’ Committee.
    Benjamin E. Loup, New Orleans, for Anthony Guarino and defendants’ Committee.
    Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B. Oliver.
    Philip S. Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans and for the City of New Orleans, its departments, officers and employees.
    Caryl H. Vesy, Asst. City Atty., for Vieux Carre Commission of the City of New Orleans.
    Gerald A. Stewart, Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., Jane M. Gisevius and Frederick J. Gisevius, Jr., New Orleans, for plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

The judgment appealed from is affirmed. See opinion in Dufrene v. Guarino et al., La.App., 343 So.2d 1097 (1976).

AFFIRMED.

MORIAL, J., dissents for reasons assigned in No. 7957.


text:
    Horace W. GETCHELL, Sr., Individually and as the Representative of the Estate of his Deceased son, Horace W. Getchell, Jr. v. Anthony GUARINO and Phillip Esteve.
    No. 7960.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.

      Michael H. Bagot and John H. Gniady, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Phillip Esteve.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Phillip Esteve, Oregon Auto. Ins. Co., Northwestern Nat. Ins. Group, and defendants’ Committee.
    Benjamin E. Loup, New Orleans, for Anthony Guarino and defendants’ Committee.
    Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B. Oliver.
    Philip S. Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans and for the City of New Orleans, its departments, officers and employees.
    Caryl H. Vesy, Asst. City Atty., for Vieux Carre Commission of the City of New Orleans.
    Gerald A. Stewart, Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.
    William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., Jane M. Gisevius and Frederick J. Gisevius, Jr., New Orleans, for plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

This is an appeal from two adverse judgments, one dismissing plaintiff’s suit against .the City of New Orleans and the other dismissing plaintiff’s suit against the State of Louisiana.

This court, ex mero mota, directed appellant to show cause why this appeal should not be dismissed for the lack of jurisdiction resulting from the failure to post timely the bond required by the order of appeal. Subsequently the motion was referred to the merits.

A review of the record confirms that the appeal by plaintiff against the City of New Orleans was perfected timely and is therefore maintained.

The appeal against the State of Louisiana; Raymond B. Oliver, state fire marshal of the State of Louisiana; and the Department of the State Fire Marshal is dismissed because it was not perfected timely. The bond was filed late. C.C.P. art. 2087 requires the appeal bond to be filed within the delay allowed for a devolutive appeal. As to the judgment dismissing plaintiff’s suit against the State and its agents, the critical dates are:

November 18, 1975 — Judgment maintaining the exception of no cause of action and dismissing this suit against the State, the fire marshal and his department was signed.
November 19, 1975 — Notice of judgment was mailed.
January 15, 1976 — Appeal filed.
March 1, 1976 — Last day for perfecting the appeal.
March 5, 1976 — Appeal bond was filed.

It is obvious the appeal bond was not filed within the delay for perfecting the appeal.

Nor can the appeal against the State be salvaged on the theory that timely filed bonds in many of the other 13 cases consolidated with this one for trial relieve this plaintiff from perfecting his appeal. This case was consolidated for trial simply because the issue of liability is identical. These suits are not in the nature of a class action nor is there any community of interest. Each petition is separate and, presumably, the costs vary from case to case. There is no evidence in any record to indicate any surety has agreed to extend his or its guarantee to any principal other than the one designated in the bond. This court cannot validly enlarge the obligations of the surety.

For the reasons assigned in Dufrene v. Guarino et al., La.App., 343 So.2d 1097 (1976), the judgment in favor of the City of New Orleans maintaining its exception of no cause of action is affirmed.

For the reasons herein stated the appeal from the November 18, 1976 judgment in favor of the State of Louisiana; Raymond B. Oliver, state fire marshal of the State of Louisiana; and the Department of the State Fire Marshal is dismissed.

AFFIRMED AS TO THE CITY OF NEW ORLEANS; DISMISSED AS TO THE STATE OF LOUISIANA.

MORIAL, J., dissents for reasons assigned in No. 7957.

      . Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir. 1976), indicates there must be a connexity between co-appellants before the court will permit the perfecting of an appeal by one to bring multiple appellants who have not complied with procedural rules of appeal before the court.


text:
    Mrs. Bennie Hambrick SCHATZ et al. v. Anthony GUARINO and Florence Guarino et al.
    No. 7966.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1977.
    C. Monk Simons, III, New Orleans, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, Paul B. Deal, New Orleans, for Phillip Esteve.
    Porteous, Toledano, Hainkel & Johnson, William A. Porteous, III, New Orleans, for Phillip Esteve, Oregon Automobile Ins. Co., Northwestern Nat. Ins. Group, and defendants’ Committee.
    Benjamin E. Loup, New Orleans, for Anthony Guarino and defendants’ Committee.
    Lawrence D. Wiedemann, New Orleans, for Anthony Guarino.
    Plauche F. Villere, Jr., New Orleans, for State Fire Marshal, Raymond B-. Oliver.
    Philip S. Brooks, City Atty., for Vieux Carre Commission of the City of New Orleans and for the City of New Orleans, its departments, officers and employees.
    Caryl H. Vesy, Asst. City Atty., for Vieux Carre Commission of the City of New Orleans.
    Gerald A. Stewart, Philip D. Lorio, III, Asst. City Attys., for the City of New Orleans, its departments, officers and employees.
    Beard, Blue, Schmitt & Treen, Robert M. Johnston, New Orleans, for Louisiana Rating & Fire Prevention Bureau.

      William J. Guste, Jr., Atty. Gen., Donald B. Ensenat, Asst. Atty. Gen., for the State of Louisiana.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Vincent J. Glorioso, Jr., Jane M. Gisevius and Frederick J. Gisevius, Jr., New Orleans, for plaintiffs’ Trial Committee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

For the reasons assigned in Getchell v. Guarino et al., La.App., 343 So.2d 1109 (1976), the judgment in favor of the City of New Orleans maintaining its exception of no cause of action is affirmed and the appeal from the judgment of November 18, 1976 in favor of the State of Louisiana; Raymond B. Oliver, state fire marshal of the State of Louisiana; and the Department of the State Fire Marshal is dismissed.

AFFIRMED AS TO THE CITY OF NEW ORLEANS; DISMISSED AS TO THE STATE OF LOUISIANA.

MORIAL, J., dissents for reasons assigned in No. 7957.


author: LEMMON, Judge, STOULIG, Judge,

text:
    Donald R. BERGERON and Cynthia Bergeron v. David L. ANDERSON and Allstate Insurance Company.
    No. 8375.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 27, 1977.
    Porteous, Toledano, Hainkel & Johnson, James S. Thompson, New Orleans, for defendants-relators.
    Benjamin B. Saunders, Metairie, for plaintiffs-respondents.

      Before LEMMON, STOULIG and BEER, JJ.
   BEER, Judge.

On July 7, 1976, plaintiffs Donald R. Ber-geron and Cynthia Bergeron instituted suit in the 24th Judicial District Court against David L. Anderson and Allstate Insurance Company. On August 16th, the defendants filed their answer and requested trial by jury. On or about August 23rd, defendants’ counsel of record received notice of the district court’s order requiring the posting of a $1,000 jury cost bond, that order having been signed on August 20th. The bond, which shows a date of August 31st, was filed on September 7th, although it is possible that it may have been physically in the clerk’s office some time prior to that date. (The Labor Day weekend was from September 4th through September 6th.)

At any rate, the record further indicates that on September 2nd, the attorney for plaintiffs filed a motion to set the case for trial on the merits, and, on that same date, the district judge entered an order removing the case from the jury docket and placing it on the docket for trial by the judge without a jury. Defendants, Anderson and Allstate, have, through their counsel, sought to return the matter to the jury docket without avail. We granted a writ of certiorari to review the matter.

Supporting memoranda has been filed by the honorable district judge before whom the case has been set for trial and by able counsel for Anderson and Allstate.

We are in sympathetic understanding of the dilemma which confronted the diligent trial judge in this matter, but must, nevertheless, grant the relief sought.

Unfortunately, the Code of Civil Procedure and the Revised Statutes are silent in dealing with the problem that is apparent in this matter. The problem could, we believe, be obviated by a provision in the Code of Civil Procedure empowering the district court to set a specific time limitation for the filing of a jury cost bond, failing which the case would be removed from the jury trial docket.

The district court was placed in a dilemma by reason of the fact that the jury cost bond was not filed of record (though it had been obtained) at the moment in time when the court was presented with a motion to set the case for trial on the non-jury docket. The court, thus confronted, granted the motion.

The generally uncontested chronology of events causes us to conclude that counsel for Anderson and Allstate proceeded with due diligence and without unexplainable delay in obtaining the bond and forwarding same for filing to the Clerk of the 24th Judicial District Court. The statute requiring the posting of the jury bond implies — we believe — a reasonable period for compliance with the order setting the amount of the bond.

Under the particular circumstances of this case, we believe that the proper exercise of our supervisory authority requires that we reinstate the case on the jury docket. Accordingly, the order of the 24th Judicial District Court is recalled and set aside, and it is how ordered that the matter be placed on the jury docket.

RECALLED, SET ASIDE AND RENDERED.

LEMMON, Judge,

concurs and assigns reasons.

The right to a civil jury trial is a statutory right to which a party is entitled when he makes a timely request and complies with the other requirements of the governing statutes. At issue in this case is the requirement of a bond. No positive law delineates the time period within which the bond must be filed, but R.S. 13:3050 provides that “(n)o jury shall be ordered in any civil case unless the bond is given” by the requesting party.

In the present case the defendant requested a jury trial in its answer, whereupon plaintiff immediately filed a motion to fix the case for trial. The trial judge, believing he was prohibited by R.S. 13:3050 from setting the date for trial by jury (because the recently ordered bond had not yet been filed) and reluctant to hold the motion to fix in abeyance (because of administrative problems in keeping up with records) set the case for trial before the judge without a jury.

This action, while expedient, constituted an unreasonable denial of defendant’s statutory right to a jury trial. A party who has timely requested a jury trial and has otherwise complied with the statute must be afforded a reasonable time to post the bond. If administrative problems exist, the problems must be confronted and resolved by court rule (which does not contravene the statutes that authorize jury trial) or by reasonable exercise by the trial judge of his inherent powers.

The above quoted provision of R.S. 13:3050 does not prohibit (when the bond has not yet been filed) the fixing of a date for trial by jury, but rather prohibits the ordering of a jury. This court in Jennings v. Coleman, 250 So.2d 845 (La.App. 4th Cir. 1971), interpreted the quoted provision (which read essentially the same at the time) as referring to the order for the commissioners to draw a jury venire.

The trial judge in the present case could have issued an order (1) fixing the date for trial and (2) commanding the drawing of the venire at some earlier date, contingent upon the bond being filed on or before the earlier date (but not less than a reasonable time after issuance of the order). Or he could have issued some other reasonable order. But under the circumstances of this case he could not reasonably require the requesting party, in order to avail himself of his statutory right, to win a race to the courthouse with his bond before his opponent got there with a motion to fix (especially when the requesting party was not even notified of post time or of the fact that a race was to take place).

STOULIG, Judge,

dissenting in part.

I am in accord with the rationale expressed in the majority opinion but dissent from its result.

R.S. 13:3050 governing civil jury trials in parishes other than Orleans is silent as to the time specified for the posting of a jury bond. In the absence of such a provision there is implied in the statute a reasonable time within which to filé the bond specified in the order granting the jury trial. What constitutes a reasonable time is dependent upon the circumstances and facts of each case.

There is a presumption that the trial judge acts with full knowledge of and in accordance with the intent and spirit of the law. Additionally the trial judge is intimately conversant with the circumstances attendant upon the issuance of and compliance with his order granting a jury trial and is therefore in the more advantageous position to determine if the litigant has been afforded a reasonable time within which to file his jury bond. In the absence of a palpable and manifest abuse of the trial judge’s discretion in his determination of a reasonable time in each particular case, his action should not be disturbed.

There is nothing in the record to indicate the trial judge was not acting either in the spirit of the statute or that he abused his discretion under the circumstances peculiar to the instant matter. From the posture of the case as presented, I cannot conclude that the passage of 13 days did not afford the relator a reasonable opportunity to post the bond specified in the order of the court.

I agree with my colleague that the case of Jennings v. Coleman, 250 So.2d 845 (La. App. 4th Cir. 1971), is not apposite to the facts in the instant matter; however, I differ in the distinctions expressed in the concurrence.

For these reasons I am of the opinion that the action of the trial court should be affirmed and therefore dissent in part from the majority view.

      . In the Jennings case the trial judge had ordered the filing of a jury bond within 60 days of signing the original request for jury trial, in accordance with a local rule of court. The requesting party filed the bond after the 60 days had elapsed and later moved to fix the case for trial. The trial judge refused to place the case on the jury docket because the bond had not been filed timely. This court ordered the case placed on the jury docket, holding that such a limitation was unreasonably restrictive because “the posting of bond is proper at any time prior to a motion to set the case for trial”, since “it is only after the filing of this kind of motion that it becomes necessary for the court to fulfill its function of providing a venire.”
      The Jennings decision implicitly found unreasonable the requirement of a bond at a point in time perhaps many months or even years (depending upon when the venire was eventually ordered to be drawn) before the bond served any useful purpose. Clearly, that decision (holding a limitation unreasonable when imposed before the filing of a motion to fix) is not authority for denying the requesting party a reasonable time to post the bond when the other party files a motion to fix immediately after the request for jury trial. Neither does that decision prohibit a court rule or an order prescribing a reasonable period for filing the bond with beginning and ending dates reasonably related to the time of drawing the jury venire.


author: CHIASSON, Judge.

text:
    Lawrence J. GROS, Individually and as the Administrator of the Estate of his minor son, Michael, and Billie Gros Individually v. HOUMA MEDICAL AND SURGICAL CLINIC et al.
    No. 11153.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 21, 1977.
    Writ Refused May 11, 1977.
    Leslie J. Clement, Jr., Thibodaux, for plaintiffs and appellants.
    Charles J. LeBlanc, Thibodaux, Donald Z. Zuber, Baton Rouge, for defendants and appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of Houma Medical and Surgical Clinic, Dr. Theodore A. Gross, Dr. M. A. Thomas, Gross, Weatherall and Duplechain and the St. Paul Fire and Marine Insurance Company, defendants-appel-lees, and against Lawrence J. Gros, Individually and as the Administrator of the Estate of his Minor Son, Michael, and Billie Gros, plaintiffs-appellants, dismissing appellants’ suit for want of prosecution.

The actions taken in this suit prior to judgment on the motion to dismiss for want of prosecution were:

May 1,1970 Appellants’ Petition filed in the Parish of East Baton Rouge.
May 5, 1970 Service and Citation on all appellees appearing herein.
July 17, 1970 Exception of No Right or Cause of Action filed on behalf of Hou-ma Hospital Corporation of the Sisters of St. Joseph.
November 23, 1970 Motion to Transfer case from 19th Judicial District Court for the Parish of East Baton Rouge to the 32nd Judicial District Court for the Parish of Terrebonne filed on behalf of Houma Medical and Surgical Clinic, St. Paul Fire and Marine Insurance Company and Houma Hospital Corporation.
November 23, 1970 Judgment ordering transfer of suit to 32nd Judicial District Court, Parish of Terrebonne.
January 8, 1971 Clerk of Court for the Parish of Terrebonne gave notice to all counsel of record of receipt of suit.
May 16, 1975 Motion for Pre-Trial Conference filed by plaintiffs and Order of Court fixing Pre-Trial on May 29,1975.
May 26,1975 Motion to enroll as counsel of record filed by Larry P. Boudreaux.
March 18, 1976 Motion to Dismiss filed on behalf of Houma Medical and Surgical Clinic, Dr. Theodore A. Gross, Dr. M. A. Thomas, Gross, Duplechain and the St. Paul Fire and Marine Insurance Company.
March 26, 1976 Hearing on Rule to Show Cause why plaintiffs’ action should not be dismissed.
June 10,1976 Motion to Dismiss filed on behalf of plaintiffs, dismissing plaintiffs’ action against Houma Hospital Corporation of the Sisters of St. Joseph.
August 12, 1976 Judgment by District Court dismissing plaintiffs’ suit against Houma Medical and Surgical Clinic, Dr. T. A. Gross, Dr. M. A. Thomas, Gross, Weatherall and Duplechain and the St. Paul Fire and Marine Insurance Company.

Code of Civil Procedure Article 561 provides in part:

“An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.”

A step in the prosecution or defense of an action within the meaning of the above cited article is a formal move or action before the trial court intended to hasten judgment. Melancon v. Continental Casualty Company, La., 307 So.2d 308 (1975); Murphy v. Hurdle Planting and Livestock, Inc., La.App., 331 So.2d 566 (1st Cir., 1976).

The appellants filed their petition on May 1, 1970. The next step in prosecution occurred over five years later on May 16, 1975, when the appellants filed a Motion to Fix for Pre-Trial Conference and the District Court ordered the Pre-Trial Conference be fixed for May 29, 1975. Unless there has been a step taken in defense of the action which would serve to interrupt the running of prescription, the appellants’ suit must be considered abandoned.

On July 17, 1970, within five years of the Motion to Fix for Pre-Trial Conference, an Exception of No Right or Cause of Action was filed on behalf of the Houma Hospital Corporation of the Sisters of St. Joseph, one of the defendants. This was a step in defense of the action and a formal move by a party to the suit before the Trial Court intended to hasten judgment.

Comment (b) to C.C.P. Art. 561 provides in part:

“This article treats the action as abandoned only if five years has elapsed without any steps being taken by any of the parties in the prosecution or defense thereof. This change was made to provide for the case where the defendant has taken some step in the defense of the action, but subsequently moves to have the action declared abandoned because the plaintiff has failed to take any step in the prosecution thereof for five years.”

Because there was a step taken by one of the parties to the suit, the appellants’ action cannot be considered abandoned under C.C.P. Art. 561.

This ease is distinguishable from Murphy v. Hurdle Planting and Livestock, Inc., supra; McClure v. A. Wilbert’s Sons Lumber & Shingle Co., La.App., 232 So.2d 879 (1st Cir., 1970); and Bolden v. Brazile, 172 So.2d 304 (La.App., 4th Cir., 1965) because in these cases suit was dismissed under Code of Civil Procedure Article 561 as to defendants upon whom there was no service and citation within the five year period. In the present case, there was service and citation on the appellees and the appellees were aware of all of the actions taken by the other parties to the suit.

Because of this holding we find it unnecessary to determine whether the filing of a motion for the transfer of a case from one District Court to another for reasons of forum non conveniens is a step in prosecution or defense of an action.

The judgment of the District Court is reversed and the case remanded for further proceedings.

REVERSED AND REMANDED.


author: LANDRY, Judge.

text:
    Roseline Duplantis LAPEYROUSE et al. v. Percy LeCOMPTE, et al. Horace CHAUVIN v. Percy LeCOMPTE et al. Percy LeCOMPTE et al. v. Horace CHAUVIN et al.
    No. 11056.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Rehearings Denied March 21, 1977.
    Writ Refused May 26, 1977.

      Ellender, Wright & Wurzlow by Thomas L. Wright and El ward Wright, Houma, for plaintiff and appellee.
    Christovich & Kearney by A. R. Christo-vich, Jr., New Orleans, for defendant and appellant.
    Rene A. Curry, Jr., New Orleans, for defendant-appellee.
    Before LANDRY, COLE and CLAIBORNE, JJ.
   LANDRY, Judge.

These consolidated actions arise from an automobile accident which occurred in Ter-rebonne Parish on Louisiana Highway 56, a paved two lane highway, at approximately 5:30 A.M., on the dark and very foggy morning of March 24, 1972. The collision involved a 1961 Cadillac owned by Percy LeCompte and being driven by his wife, Laurella LeCompte and a 1965 Pontiac owned and being driven by Horace Chau-vin. Mrs. LeCompte was traveling northerly, Mr. Chauvin was proceeding southerly. The vehicles collided, virtually head on, in the southbound lane of travel as Mrs. Le-Compte was attempting a left turn into the driveway of her sister, Mrs. Clarence Picou, who lived on the west side of the highway. The LeCompte vehicle was insured by Firemen’s Insurance Company of Newark, New Jersey (Firemen’s); Chauvin’s automobile was insured by Fidelity & Casualty Company of New York (Fidelity). Mr. Chauvin was alone. Mrs. LeCompte had as her guest passengers, her sister Mrs. Roseline Duplantis Lapeyrouse and Mrs. Lapey-rouse’s son, Keith Pellegrin, a minor at the time of the accident.

Mrs. Lapeyrouse sued Chauvin; Fidelity, whose policy limits on Chauvin’s vehicle are $5,000 - $10,000 - $5,000; Percy LeCompte; and, Firemen’s whose coverage on the Le-Compte car is $50,000 - $100,000; for personal injuries and medical expenses both for herself and on behalf of her minor son, Keith Pellegrin. Mrs. Lapeyrouse was joined in her action by her husband, Levis Lapeyrouse, to whom Mrs. Lapeyrouse was married after the accident but before suit was filed. Mr. Lapeyrouse claimed damages for future medical expense anticipated in treatment of his wife’s injuries. Chauvin sued Mr. and Mrs. LeCompte and Firemen’s for personal injuries and property losses. Mr. and Mrs. LeCompte filed suit against Chauvin and Fidelity for serious personal injuries sustained by Mrs. LeCompte and medical expense incident thereto in the stipulated amount of over $5,000.

During trial, it was stipulated by counsel for all parties that all claims against Chau-vin individually were reduced to the limits of Fidelity’s coverage, and that no personal judgment would be rendered against Chau-vin, in excess of his insurance policy limits.

After consolidated trial below, judgment was rendered: (1) In favor of Mrs. Lapey-rouse in the sum of $15,500.00 against Chauvin, Fidelity, Percy LeCompte and Firemen’s, in solido; (2) In favor of Levis Lapeyrouse against these same defendants in the sum of $2,335.02, less a credit of $679.43 due Fidelity for special damages paid Mrs. Lapeyrouse, which decree was amended to award said special damages to Mrs. Lapeyrouse; (3) Rejecting Mr. Lapey-rouse’s claim for future medical expense and also rejecting Mrs. Lapeyrouse’s claim for alleged business losses and nursing expenses assertedly owed Mrs. Lapeyrouse’s daughter and other individuals; (4) Rejecting the claims of Chauvin and the Le-Comptes against each other and their respective insurers on the ground that Chau-vin and Mrs. LeCompte were joint tort fea-sors; and, (5) Continuing the claim of Keith Pellegrin who had attained the age of majority since the accident but who could not be substituted as a party litigant in his own name because he left home prior to trial and his whereabouts could not be determined. Judgment against Fidelity was restricted to $5,000 in conformity with its policy coverage.

Chauvin and Fidelity have not appealed the judgment against them in favor of Mrs. Lapeyrouse. Neither has Chauvin appealed dismissal of his claim against the Le-Comptes and Firemen’s. Mrs. Lapeyrouse has appealed, seeking: (1) Increase of her award for personal injuries; (2) Recovery of loss of business profits and expense incurred because of her inability to operate her florist business; (3) Recovery of nursing expenses; and (4) Future medical expense for anticipated plastic surgery. Mr. LeCompte and Firemen’s have appealed seeking reversal of the judgment in favor of Mrs. Lapeyrouse, and alternativély requesting that the award to Mrs. Lapeyrouse for personal injuries be affirmed.

In oral argument before this court, it was stipulated by Mr. LeCompte’s counsel that Mr. LeCompte’s claim against Chauvin and Fidelity for special damages incurred in treatment of Mrs. LeCompte’s extensive injuries has been abandoned.

We reverse the judgment insofar as it holds Mrs. LeCompte to be a joint tort feasor and casts Percy LeCompte and Firemen’s; in all other respects the judgments are ^ affirmed.

Mrs. LeCompte testified that shortly before the accident she picked up her sister, Mrs. Lapeyrouse, to attend a memorial Mass to be said that morning for their mother. She was proceeding along the highway in a dense fog, with her headlights on, just before daylight, her range of vision being approximately 80 feet. She was proceeding to the home of another sister, Mrs. Clarence Picou. She drove at a speed of 25 to 30 miles per hour in her proper lane until she reached a point opposite the Picou driveway. Because of her limited visibility, she stopped in the northbound lane opposite the driveway, turned on her left turn signal light, and looked intently ahead for oncoming traffic. She remained stopped a few seconds and asked Mrs. Lapeyrouse, who was seated to her right, whether Mrs. La-peyrouse saw any oncoming vehicles. Receiving a negative reply from her sister, she commenced her left turn. She recalled nothing more concerning the accident.

Mrs. Lapeyrouse’s testimony is essentially that Mrs. LeCompte was driving cautiously in the northbound lane until she reached the Picou driveway. At this point, Mrs. LeCompte brought her vehicle almost to a stop in the northbound lane and then began a left turn. She remembered nothing further regarding the circumstances attending the accident. She confirmed that the morning was very foggy but that there was some visibility as she could see the Picou residence on the west side of the highway, before Mrs. LeCompte began her turn.

Mr. Chauvin testified he spent the prior evening and night at several beer parlors and pool halls from about 9:00 P.M. until approximately 1:30 A.M., drinking beer and playing pool. He admitted having 6 .to 8 bottles of beer, following which he slept in his automobile until a few minutes prior to the accident. After awakening in his car, he waited a few minutes for his head to clear and then started toward his home some 10 to 12 miles away. He was proceeding southerly at a speed of 45 to 50 miles per hour, with his lights on, until just before the accident, at which time he reduced his speed to about 30 or 35 miles per hour because of the fog. At trial and in a statement given an adjuster while a hospital patient following the accident, Chauvin related there was a visibility of about 200 feet at the time of the accident. His statement recites that he saw the oncoming LeCompte car while it was about 200 feet distant, at which time Mrs. LeCompte was proceeding normally in the northbound lane at a slow speed. His statement further recites that Mrs. LeCompte turned left when he was only 20 feet away. At trial, however, Chauvin testified that while visibility was about 200 feet, he did not see the LeCompte car until it was about 50 feet away; that he could not explain why he did not see the LeCompte car sooner; and, that Mrs. Le-Compte turned when he was only 10 to 12 feet away. He denied seeing blinker lights in operation on the LeCompte vehicle. A statement by an acquaintance of Chauvin indicates that he and Chauvin were together drinking until considerably later than 1:30 A.M. on the morning of the accident.

The accident was investigated by Captain Ray Robinson, Louisiana State Police, who arrived on the scene approximately 40 minutes after the accident. He found the Le-Compte car completely blocking the southbound lane and facing in a southerly direction, opposite its direction of travel. He determined the point of impact was in the southbound lane, following which the Chau-vin car went completely off the highway on the west side. He noted about 20 feet of skid marks made by the Chauvin car south of the point of impact. Because of the serious injuries to Chauvin, Mrs. LeCompte and Mrs. Lapeyrouse, Captain Robinson made no effort to question them at the scene. He further testified that the fog was very thick when he arrived upon the scene.

In holding Mrs. LeCompte at fault, the trial court relied upon Simon v. Ford Motor Company, 282 So.2d 126 (La.1973), which holds that a motorist who is involved in an accident while traveling in an opposing traffic lane, bears the burden of exculpation from the slightest degree of negligence, which onus Mrs. LeCompte did not discharge. We find that Mrs. LeCompte did establish her freedom from negligence and that the trial court erred in holding otherwise.

When a motorist’s visibility is impaired because of smoke, mist, dust, or other atmospheric conditions, he is held to the duty of operating his vehicle with an unusually high degree of care. In such instances, a driver should reduce his speed to the extent that he can maintain his vehicle under control and reduce to a minimum the possibility of an accident. When visibility is totally obscured or greatly impaired, a driver should stop his car and remain at a standstill until conditions warrant his proceeding ahead. He does not have the right to assume his course of travel is free of danger or obstruction in the absence of his ability to see ahead clearly, and if he continues as if he knew there was perfect clearance ahead, he does so at his own risk and peril. Crockett v. United States Fidelity and Guaranty Co., 229 So.2d 169 (La.App. 1st Cir. 1970), and authorities therein cited.

From the record, we conclude that, while it was indeed a foggy morning, reasonable visibility existed at the scene when this accident occurred. We seriously question Chauvin’s testimony that visibility was 200 feet. The testimony of Mrs. LeCompte and Mrs. Lapeyrouse regarding visibility appears more plausible, and from which we determine that there was visibility of approximately 75 to 100 feet. Under such circumstances, we see no reason why Mrs. LeCompte should stop her vehicle and remain stationary upon the highway. We also find that, from the physical facts shown, Chauvin was traveling at a grossly excessive speed under the circumstances.

On these findings, we absolve Mrs. Le-Compte from negligence. She was in her proper lane of travel. Her headlights and left turn blinker signal were in operation. She stopped and looked for the lights of oncoming vehicles and also requested her guest passenger to watch for oncoming automobiles. After receiving a negative response from her guest passenger, she commenced a left turn with no oncoming yehi-cle within the range of her vision. She had a right to assume that any southbound motorist would be traveling at a reasonable speed under the circumstances. She did not see the oncoming Chauvin vehicle because it was too far distant for its lights to be observed in the fog that prevailed. We find that if Chauvin had been traveling at a reasonable speed under the circumstances, Mrs. LeCompte would have completed her turn without incident. We can think of no additional caution Mrs. LeCompte could have exercised under the circumstances, except to remain stationary on the highway, which we find she was not required to do under the circumstances of this case.

We find this case somewhat analogous to Demerest v. Travelers Insurance Company, 234 La. 1048, 102 So.2d 451 (1958), wherein a motorist crossing a highway in a fog was exonerated from fault even though her vehicle was struck by a motorist traveling upon the highway in his proper lane of travel. In Demerest, above, the court found that the excessive speed of the driver upon the highway was the sole proximate cause of the accident.

The judgment in favor of Mrs. Lapey-rouse against Mr. LeCompte and Firemen’s is reversed and set aside and judgment rendered herein in favor of Mr. LeCompte and Firemen’s against Mr. and Mrs. Lapeyrouse, rejecting the claims of Mr. and Mrs. Lapey-rouse, with prejudice. In all other respects, the judgment is affirmed, all costs of these proceedings to be paid by Fidelity.

Affirmed in part, reversed in part and rendered.


author: HOOD, Judge.

text:
    TRI-PARISH BANK AND TRUST COMPANY et al., Plaintiff-Appellant, v. CITY OF EUNICE, Defendant-Appellee.
    No. 5724.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Rehearing Denied April 5, 1977.
    Writ Refused June 1, 1977.
    Pucheu & Pucheu by Jacque B. Pucheu, Sr., Eunice, for plaintiff-appellant.
    Dubuisson, Brinkhaus & Dauzat by James G. Dubuisson, Opelousas, Young & Burson by J. Nilas Young, Eunice, James T. Gu-glielmo, Opelousas, for plaintiff-appellee.
    Guillory, McGee & Mayeux by A. Frank McGee, Eunice, for defendant-appellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   HOOD, Judge.

Plaintiffs, Tri-Parish Bank and Trust Company, First National Bank of Eunice and Acadiana Bank, instituted this action for a declaratory judgment against the City of Eunice and St. Landry Bank and Trust Company. Plaintiffs seek a judgment decreeing that the City of Eunice must select as its fiscal agent a bank which is domiciled in that city, and that it cannot select as the depository of its funds a bank which operates only a “branch bank” in Eunice. The trial judge rendered judgment declaring, in substance, that the City of Eunice could select as its fiscal agent any of the banks which are domiciled in the parishes of St. Landry or Acadia. Two of the plaintiffs, Tri-Parish Bank and Trust Company and First National Bank of Eunice, have appealed.

The issue presented is whether the City of Eunice is required by LSA-R.S. 39:1211, et seq., to select as its fiscal agent, or as the depository of its funds, a bank which is domiciled in that city.

Plaintiffs are banking corporations which are domiciled in Eunice. The City of Eunice is located partly in St. Landry Parish and partly in Acadia Parish. It also is located partly in the Seventh Congressional District and partly in the Eighth Congressional District. St. Landry Parish Bank and Trust Company, one of the defendants, is a banking corporation which is domiciled in the City of Opelousas, in St. Landry Parish. It maintains its principal place of business in Opelousas, but it also operates a “branch bank” in Eunice.

In May, 1976, the City of Eunice gave written notice that it would receive bids “for a Fiscal Agent to serve as such for a period of two years commencing July 1, 1976.” That notice was published in the official journal of the city, and a copy of it was given to each of the banks located in the parishes of St. Landry and Acadia, all as required by LSA-R.S. 39:1214. One such notice was given to the Eunice Branch of St. Landry Bank and Trust Company.

This suit was filed on May 12, 1976. Plaintiffs allege that a dispute exists between them and defendants as to the banks which the City of Eunice may select to serve as its fiscal agent, that they are entitled to a declaratory judgment decreeing that the city must select a bank domiciled in that city, and that St. Landry Bank and Trust Company should be made a party defendant because it could be affected by such a judgment.

The City of Eunice takes no position on the legal issues presented here. It merely submits the matter to the court for determination.

Defendant, St. Landry Bank and Trust Company, has submitted a bid to serve as fiscal agent for the City of Eunice, and it concedes that it could be affected by the judgment rendered herein. It contends that the City of Eunice may select as its fiscal agent any bank domiciled in either the parish of St. Landry or the parish of Acadia, and that it is not restricted to selecting a bank domiciled in Eunice. Actually, the defendant contends that the City of Eunice has authority to select any bank domiciled in the Seventh or Eighth Congressional Districts, but on this appeal it merely seeks to have the judgment of the trial court affirmed.

The trial judge rendered judgment declaring that the City of Eunice must give written notice of its intent to select a fiscal agent to each of the banks located in St. Landry and Acadia Parishes, that the city must consider bids submitted by any banks domiciled in those parishes, and that any bank domiciled in either of those parishes is legally entitled to act as the fiscal agent for the City of Eunice. It is from that judgment that the present appeal was taken.

The law governing the selection of a fiscal agent by a municipality is set out in Chapter 7, Title 39, of the Louisiana Revised Statutes (LSA-R.S. 39:1211, et seq.). The City of Eunice is a “Local Depositing Authority,” as that term is defined in LSA-R.S. 39:1211. Section 1214 and the first paragraph of Section 1220, of that Title, read as follows:

“1214. Bids to be invited
Local depositing authorities shall, within thirty days prior to the expiration of any contract that may be entered into under this Chapter, give written notice to each of the banks located in any parish which embraces all or any portion of the political subdivision in which the depositing authority is domiciled and for which it acts, setting forth the intention of the depositing authority to select a fiscal agency. This notice shall specify the time for which the fiscal agency contract shall be made and the conditions and terms of the fiscal agency contract proposed; and it shall invite bids under the terms and conditions of the proposal. A copy of the notice shall be published in the official journal of the depositing authority at least three times, the first notice to be published at least fifteen days preceding the date for the selection of the fiscal agency.”
“1220. Selection of depositories
Local depositing authorities shall, except as otherwise provided in this Chapter, select as the depositories of their funds, a bank domiciled in the parish or municipality or congressional district of the depositing authority, subject to the following conditions . . . .”

In interpreting a statute the function of the court is to give it the meaning the lawmakers obviously intended. Effect should be given to all statutory provisions when possible. There is a presumption that every word, sentence or provision in the act was intended to serve some useful purpose, and that no unnecessary words or provisions were used. The meaning and intent of a statutory provision is to be determined by a consideration of the statute in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the statute and with the obvious intent of the Legislature. LSA-C.C. arts. 16, 17 and 18; LeGros v. Conner, 212 So.2d 177 (La.App. 3 Cir. 1968); Hoffpauir v. City of Crowley, 241 So.2d 67 (La.App. 3 Cir. 1970).

We have examined LSA-R.S. 39:1211, et seq., with the above rules in mind, and have concluded that under the provisions of those sections of the Revised Statutes the City of Eunice must select as its fiscal agent a bank which is domiciled in that city.

LSA-R.S. 39:1220 provides that a municipality, such as the City of Eunice, shall select as the depository of its funds “a bank domiciled in the parish or municipality or congressional district of the depositing authority.” The interpretation placed on that statutory provision by defendants and by the trial court, that is, that the City of Eunice may select as its fiscal agent a bank domiciled anywhere in the parishes of St. Landry or Acadia, ignores the words “municipality or congressional district,” which appear in that section. It treats those words, and particularly the word “municipality,” as being totally unnecessary and as serving no useful purpose. We do not think the Legislature intended for those words to be meaningless. If it had intended the law to be as found by the trial judge, then we think' the statute would simply have authorized the selection of a bank domiciled in the parish which embraces any portion of the political subdivision. Certainly, there would have been no reason to include the word “municipality” in that section if the Legislature actually did not intend to require that a municipality select as the depository of its funds a bank domiciled in that political subdivision.

The defendant bank points out that Section 1214 requires a municipality not only to give notice to all banks located in the parish, but also to invite bids from all of those banks. It argues that Section 1214, when construed with Section 1220, shows that the Legislature intended that a municipality may select as its fiscal agent a bank which is domiciled anywhere within the parish which embraces a portion of that municipality. Its argument is that the Legislature would not have required municipalities to invite bids from other banks if it intended that none of those banks could serve as the fiscal agent for the municipality.

Although the argument made by defendants is persuasive, we have concluded that the provisions of Section 1214 can be reconciled with those of Section 1220, and that the enactment of the former does not indicate that the Legislature intended to authorize a municipality to select as its fiscal agent any bank in the parish.

LSA-R.S. 39:1217 provides, in substance, that in the event no bank domiciled in the municipality qualifies to serve as the fiscal agent of that political subdivision, then the city may make private arrangements and enter into written contracts for those services with other banks in the municipality “or as near thereto as practical.” It is apparent, therefore, that other banks, which are not domiciled in the municipality but are located near it, may have a valid interest in the selection of a fiscal agent for that municipality, since local banks may elect not to submit bids to serve as such. Also, the requirement that all banks in the parish be notified and invited to submit bids gives a bank not domiciled in the municipality an opportunity to challenge the qualifications of a local bank, if it has grounds to do so, thereby giving the challenging bank the possible opportunity of serving the city by contract under Section 1217. There are plausible reasons, therefore, for requiring that notices of intent to select a fiscal agent be given to all banks in the parish, although all such banks may not be eligible to serve as such, except under Section 1217.

We concede that the requirement in Section 1214 that the depositing authority invite bids from all banks in the parish indicates an intent on the part of the Legislature to permit a municipality to select any bank in the parish as its fiscal agent. We do not believe that that provision is sufficient, however, to overcome the provisions of Section 1220.

The interpretation placed on Section 1220 by defendant and by the trial court renders meaningless and unnecessary the words “or municipality,” as used in that section. Under that interpretation there could never be an occasion when a depositing authority would be required to select as the depository of its funds a bank domiciled in a municipality. The construction urged by plaintiffs, on the other hand, gives meaning and effect to all of the words and provisions of Section 1220, and it also gives effect to all of the provisions of Section 1214.

In our opinion a fair reading of Section 1220, considering it with other pertinent statutory provisions and applying established rules of statutory construction, compels the conclusion that the Legislature intended to provide that a municipality must select as its fiscal agent a bank which is domiciled in that municipality. If the depositing authority is not a municipality, but it is a parish or a political subdivision located wholly within a parish, then it may select as its fiscal agent a bank which is domiciled anywhere in that parish. If the depositing authority is not a municipality, or a parish, or a state official or agency, and its geographical area extends over more than one parish, then we think Section 1220 authorizes it to select as its fiscal agent a bank which is domiciled in the congressional district of the depositing authority. That construction or interpretation of LSA-R.S. 39:1220, we believe, is consistent with the presumption required by law that every word, sentence or provision of the act is intended to serve some useful purpose, and that no unnecessary words or provisions were used.

In the instant suit, we think the City of Eunice is required to give notice to each of the banks located in the parishes of St. Landry and Acadia, setting forth its intention to select a fiscal agency, and to invite bids from those banks, all as required by LSA-R.S. 39:1214. The fact that such a notice is required or is actually given, however, does not authorize the city to select as the depository of its funds a bank which is not domiciled in that city, except as otherwise provided in Chapter 7 of Title 39, of the Revised Statutes.

Our conclusion is that LSA-R.S. 39:1220 requires that, except as otherwise provided in Chapter 7 of Title 39 of the Revised Statutes, a municipality must select as the depository of its funds a bank which is domiciled in that municipality. The trial judge erred, therefore, in holding that the City of Eunice could select as its fiscal agent any of the banks which are domiciled in the parishes of St. Landry or Acadia.

For the reasons herein set out, the judgment appealed from is reversed, and judgment is hereby rendered declaring that, except as otherwise provided in Chapter 7 of Title 39 of the Louisiana Revised Statutes, the City of Eunice is required by LSA-R.S. 39:1220 to select as its fiscal agent, or as the depository of its funds, a bank which is domiciled in that city, and that it is not authorized to select as its fiscal agent a bank which, although domiciled elsewhere, operates a “branch bank” in Eunice. The costs of this suit and of this appeal are assessed to defendant, St. Landry Bank and Trust Company.

REVERSED AND RENDERED.